INTERNATIONAL COURT OF JUSTICE
CASE CONCERNING
AERIAL HERBICIDE SPRAYING
ECUADOR
V.
COLOMBIA
MEMORIAL OF ECUADOR
VOLUME I
28 APRIL 2009VOLUME I TABLE OF CONTENTS
Page
CHAPTER I. INTRODUCTION AND OVERVIEW OF THE CASE..................1
Section I. The Structure of the Memorial...........................................................9
CHAPTER II. FACTUAL BACKGROUND.......................................................17
Section I. Ecuador’s Border Region.................................................................21
A. The Geographical Setting........................................................................21
B. TheNaturalEnvironment .......................................................................25
C. ThePeople ..............................................................................................29
Section II. Colombia’s Aerial Sprayings..........................................................36
A. Background.............................................................................................36
B. The Spray Mixture..................................................................................41
C. Internal and International Criticisms ......................................................46
D. Aerial Fumigations Have Been Ineffective.............................................51
CHAPTER III. THE DIPLOMATIC HISTORY OF THE DISPUTE.................55
Section I. Ecuador’s Early Protests and Requests for
Information: 2000-2002....................................................................................59
Section II. The First Joint Scientific Commission and Colombia’s Continued
Failure to Provide Information: 2003-2004......................................................67
Section III. Colombia’s Adherence to Its Fumigation Programme Over
Ecuador’s Continued Opposition and the Involvement of Multilateral
Organizations: 2004-2007.................................................................................77
Section IV. The Second Joint Scientific Commission and the Collapse of
Negotiations: 2007-2008...................................................................................87
CHAPTER IV. JURISDICTION..........................................................................97
Section I. The Pact of Bogotá.........................................................................100
Section II. The 1988 Narcotics Convention....................................................105
CHAPTER V. THE DANGERS PRESENTED BY COLOMBIA’S AERIAL
SPRAYING OF HERBICIDES..........................................................................109
Section I. The Toxic Chemicals in the Herbicidal Spray Mixture..................113
A. Glyphosate: The Base Chemical...........................................................114
i B. SupplementaryChemicals.....................................................................120
C. Other Possible Components of the Spray Mixture ...............................127
Section II. The Spray Mixture’s Effects on People, Plants, Animals and the
Environment....................................................................................................132
A. Effects on People ..................................................................................132
B. Effects on Plants and Domesticated Animals.......................................141
C. Effects on the Environment ..................................................................145
Section III. Aerial Application of the Herbicidal Spray.................................153
A. Aerial Spraying Inherently Causes Drift...............................................153
B. Local Meteorological and Atmospheric Conditions Increase Drift......158
C. Colombia Sprays the Herbicide in a Manner That Increases Drift.......160
Section IV. The Harms Caused by Colombia’s Aerial Spraying of Toxic
Herbicides Inside Colombia............................................................................164
CHAPTER VI. THE DAMAGE CAUSED IN ECUADOR BY COLOMBIA’S
AERIAL SPRAYING OF HERBICIDES..........................................................177
Section I. The Harm to People........................................................................181
A. IndependentReports .............................................................................181
B. WitnessStatements...............................................................................189
1. Sucumbíos.......................................................................................190
2. Esmeraldas......................................................................................199
C. The Observed Harms and the Known Effects of the Spray..................204
Section II. The Harm to Plants........................................................................210
A. IndependentReports .............................................................................211
B. WitnessStatements...............................................................................215
1. Sucumbíos.......................................................................................215
2. Esmeraldas......................................................................................220
C. The Observed Harms and the Known Effects of the Spray..................222
Section III. The Harm to Animals ..................................................................225
A. IndependentReports .............................................................................225
B. WitnessStatements...............................................................................228
1. Sucumbíos.......................................................................................228
ii 2. Esmeraldas......................................................................................231
C. The Observed Harms and the Known Effects of the Spray..................232
Section IV. The Special Harm to Indigenous Communities...........................235
A. IndependentReports .............................................................................236
B. WitnessStatements...............................................................................239
1. Plants and Animals .........................................................................241
2. People..............................................................................................249
Section V. Conclusions...................................................................................252
CHAPTER VII. VIOLATION OF TERRITORIAL SOVEREIGNTY .............255
Section I. Colombia Has Violated Ecuador’s Territorial Sovereignty ...........257
A. Violation of Territorial Sovereignty .....................................................258
B. Sovereignty and Environmental Harm..................................................266
Section II. Conclusions...................................................................................268
CHAPTER VIII. TRANSBOUNDARY HARM................................................271
Section I. Prevention of Transboundary Harm...............................................273
A. Ecuador’s Claim with Respect to Transboundary Harm ......................273
B. Colombia has a Duty to Prevent Significant Harm to Persons, Property,
Natural Resources and the Environment in Ecuador............................278
1. There Is Significant Harm...............................................................279
2. The Risk of Harm Was Foreseeable...............................................282
C. Colombia Failed to Take Adequate Precautionary Measures...............285
Section II. Cooperation in Managing the Transboundary Effects of Aerial
Spraying of Herbicides ...................................................................................293
A. Ecuador’s Claim with Respect to Cooperation.....................................293
B. Colombia Failed to Assess the Potential Transboundary Effects of
Aerial Spraying.....................................................................................295
C. Colombia Failed to Ensure that Communities in Ecuador Likely to be
Affected by Aerial Spraying Were Informed and Consulted................303
D. Colombia Failed to Cooperate in the Control of Transboundary Risks
Arising from Aerial Spraying ...............................................................307
iii Section III. Cooperation and Respect for Fundamental Human Rights and
Protection of the Environment as Required by the
1988 Narcotics Convention. ...........................................................................312
Section IV. Conclusions .................................................................................316
CHAPTER IX. THE VIOLATION OF INTERNATIONAL HUMAN RIGHTS
LAW AND THE RIGHTS OF INDIGENOUS PEOPLES................................320
Section I. Colombia Has Violated the Rights of Indigenous Peoples
in Ecuador.......................................................................................................327
A. Violation of Article 27 of the International Covenant on Civil and
Political Rights......................................................................................330
B. Violation of ILO Convention No. 169..................................................334
C. Violation of Article 21 of the American Convention
on Human Rights ..................................................................................338
D. Conclusions...........................................................................................342
Section II. Colombia Has Violated Fundamental Human Rights in Ecuador 342
A. The Right to Life...................................................................................344
B. The Right to Health...............................................................................347
C. The Right to Food.................................................................................352
D. The Right to Water................................................................................358
E. The Right to a Healthy Environment....................................................361
F. The Right to Property............................................................................367
G. The Right to Humane Treatment ..........................................................369
H. The Right to Private Life ......................................................................371
I. The Right to Information......................................................................375
J. Conclusions...........................................................................................378
CHAPTER X. COLOMBIA IS INTERNATIONALLY RESPONSIBLE FOR
ITS VIOLATIONS OF INTERNATIONAL LAW............................................380
Section I. The Harm Suffered by Ecuador......................................................385
Section II. Cessation and Non-Repetition.......................................................386
Section III. Reparation....................................................................................389
Section IV. Compensation..............................................................................396
iv A. Ecuador Claims Compensation for Death or Injury to the Health of Any
Person or Persons..................................................................................398
B. Ecuador Claims Compensation for Loss of or Damage to the Property or
Livelihood or Human Rights of Such Persons......................................400
C. Ecuador Claims Compensation for Environmental Damage and the
Depletion of Natural Resources............................................................402
D. Ecuador Claims Compensation for the Costs of Monitoring to Identify
and Assess Future Risks to Public Health, Human Rights and the
Environment..........................................................................................408
1. PublicHealth...................................................................................408
2. Environment: Flora and Fauna........................................................409
E. Ecuador Claims Compensation for Other Loss or Damage..................411
Section V. Satisfaction....................................................................................411
SUBMISSIONS..................................................................................................412
LIST OF ANNEXES ..........................................................................................416
LIST OF MAPS, FIGURES, PHOTOGRAPHS AND ILLUSTRATIONS ......436
v CHAPTER I.
INTRODUCTION AND OVERVIEW OF THE CASE1.1 On 31 March 2008 Ecuador instituted proceedings against Colombia to
protect its rights under international law in respect of the aerial spraying by
Colombia of toxic herbicides and other chemicals at locations near, at and across
their shared border. As the Application makes clear, Ecuador is deeply concerned
that the aerial spraying has caused serious damage to people, to crops, to animals,
and to the natural environment on the Ecuadorian side of the frontier, and poses a
grave risk of further damage over time. Ecuador is equally concerned that despite
repeated and sustained efforts to negotiate an end to the aerial sprayings, such
negotiations have proved unsuccessful. Accordingly, the objective of Ecuador’s
case is to establish responsibility for Colombia’s past actions and to ensure that
Colombia takes no actions at any time in the future that are inconsistent with its
obligations under international law.
1.2 Ecuador’s Application is based on Article 36, paragraph 1 of the Statute
of the Court and Article XXXI of the American Treaty on Pacific Settlement of
Disputes, signed in Bogotá on 30 April 1948 (“the Pact of Bogotá”). Ecuador
ratified the Pact on 7 March 2008 and Colombia has been a party since 6
November 1968. The Court also has jurisdiction over the present case in
accordance with Article 32 of the 1988 United Nations Convention against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances (“1988 Narcotics
Convention”).
1.3 By its Order of 30 May 2008, the Court fixed 29 April 2009 as the date
for submission by Ecuador of its Memorial. This Memorial, together with the
accompanying Annexes, is submitted in accordance with that Order.
1.4 The dispute between Ecuador and Colombia raises important issues across
a number of distinct but related areas of international law. Ecuador is concerned
3to ensure that Colombia acts in accordance with all of its obligations under
international law, recognising that Colombia is a well-developed country that has
the means to seek to eradicate coca plants in a manner that is internationally
lawful. Ecuador does not seek to give priority to any of the causes of action on
which it relies. Ecuador invites the Court to deal with all aspects raised by the
case, having regard to their interrelated nature. Ecuador is bound to point out,
however, that like every State, it is particularly concerned to ensure that its
sovereignty and territorial integrity are fully respected by its neighbours. With its
significant and harmful transboundary effects, Colombia’s aerial spraying
programme is self-evidently inconsistent with respect for Ecuador’s sovereignty.
Such respect is closely connected to the distinct obligations that Ecuador is taking
steps to protect in this case: these are obligations of fundamental importance
relating to the law concerning transboundary harm and environmental protection,
the law of human rights and the law concerning protection of the rights of
1
indigenous people . Ecuador’s Application made clear the interrelated nature of
the distinct obligations that Colombia has violated.
1.5 As set out in detail in the Chapters that follow, the case arises from aerial
fumigations that Colombia has carried out since along the Ecuadorian border
since 2000, with the intention of eradicating coca plants in an area of
extraordinary biological diversity that is also home to a large number of
indigenous people; these are factors that impose on Colombia a special duty to
respect the highest standards of care and diligence. These fumigations have
caused extensive, long-lasting and widespread harm to Ecuador, to its people and
to its environment. They have been carried out in blatant violation of Colombia’s
1
Ecuador reserves its rights in relation to any argument that Colombia may make under the rules
of international humanitarian law, which in Ecuador’s view have no relevance to this case and
which cannot, in any event, be relied upon to justify any of the acts in which Colombia has
engaged and which are the subject of these proceedings.
4international legal obligations, under general international law and under a wide
range of international conventions to which Colombia and Ecuador are parties.
These conventions comprise a range of distinct international legal obligations,
including those relating to human rights, the environment and the rights of
indigenous peoples. A singular feature of this case is precisely the fact that it
emphasizes the interrelationship between various norms of international law,
providing the Court with an opportunity to underscore their importance.
1.6 In this regard, Ecuador has at all times been acutely aware of the Court’s
jurisprudence, particularly in relation to principles pertaining to sovereignty, the
protection of human rights and the protection of the environment. The Court has
not previously had occasion to pronounce on obligations relating to the rights of
indigenous peoples. In relation to respect for sovereignty, Ecuador has at all
times, in responding to Colombia’s actions, been guided by the Judgment given
as long ago as 1949, in the Corfu Channel case, when the Court observed,
“[b]etween independent States, respect for territorial sovereignty is an essential
foundation of international relations” 2.
1.7 In relation to the environment, Ecuador has been guided by the Court’s
opinion of 1996, on the Legality of the Use of Nuclear Weapons , when it ruled
that:
“The existence of the general obligation of States to ensure that
activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is
2Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 4, p. 35.
5 now part of the corpus of international law relating to the
environment.” 3
1.8 Ecuador has also been guided by the Court’s approach to the importance
of the respect for fundamental human rights. Human rights obligations are
largely considered as erga omnes obligations, i.e. “obligations of a State toward
4
the international community as a whole” . The Court has emphasised the
importance of respect for fundamental human rights: most recently in the Case
Concerning Application of the International Convention on the Elimination of All
Forms of Racial Discrimination , for example, the Court ordered Provisional
Measures seeking to ensure respect for rights to freedom from discrimination,
freedom from violence and bodily harm, freedom of movement and other human
rights . Although the Court has not yet had occasion to address the protection of
the rights of indigenous peoples, Ecuador recognizes that the principles and
concerns that have inspired the Court on matters relating to human rights and the
environment are equally applicable in relation to the rights of indigenous peoples.
1.9 In bringing this case, Ecuador emphasizes that it is strongly committed to
international efforts aimed at the eradication of the scourge of narcotic
substances. It retains an equally strong commitment, however, to the principle
that all such efforts must be carried out in a manner that respects the international
rule of law and the rights of neighbouring States. Whatever legitimacy
Colombia’s actions may have in regard to their underlying objective, the fact is
3
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 199, p.
226, para. 29.
4
Barcelona Traction, Light and Power Co., Lmtd. (Belgium v. Spain), Judgment, I.C.J. Reports
1970, p. 3, paras. 33 – 34.
5Case Concerning Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v. Russian Federation), Order of 16 Oct. 2008, p. 39, para. 142.
6that they have been carried out in blatant disregard of the rights of others,
including the rights of Ecuador and its population.
1.10 Colombia’s actions have had a particularly devastating impact on
Ecuador’s rich, protected environment, on plants, animals and wildlife, as well as
on the communities that are dependent on the long term well-being of that
environment. The populations in the areas of concern have been greatly harmed,
both in terms of immediate damage to their health, crops and livelihood and the
longer term consequences to their health and environment. The fragile
equilibrium prevailing between these communities and their environment, which
is a constitutive part of their specific culture, has been severely endangered and,
in some cases, destroyed; this has forced indigenous and other local residents to
abandon their areas of settlement. In all affected provinces of Ecuador, long term
detrimental effects of the sprayings have been reported on crops as well as on
domestic and wild animals. These effects have had severe consequences for all
the populations affected, but in particular for indigenous peoples, whose
livelihoods are intimately connected to their surrounding environments.
Colombia’s actions have therefore affected not only basic needs, but also the very
fabric of the social and cultural life of populations living on Ecuador’s side of the
border.
1.11 This case therefore raises issues of great importance for Ecuador.
Ecuador is aware of the approach that is taken by the Court: as it stated recently
in the case concerning Armed Activities on the Territory of the Congo, the Court
7 “will first make its own determination of the facts and then apply
the relevant rules of international law to the facts which it has
6
found to have existed” .
1.12 The findings of fact necessarily entail an assessment of the evidence,
whereupon the Court has “not only the task of deciding which of those materials
must be considered relevant, but also the duty to determine which of them have
probative value with regard to the alleged facts” . As with the substantive law, in
preparing this case Ecuador has been guided by the Court’s approach to issues of
8
evidence .
1.13 Having regard to the approach taken by the Court, Ecuador relies on
evidence drawn from a range of sources. It relies extensively on
contemporaneous evidence from persons with direct knowledge on both sides of
the border. It also relies on independent sources associated with United Nations
inquiries, including the valuable reports prepared by no less than four United
Nations Special Rapporteurs that consistently and persuasively raise concerns
about Colombia’s programme of aerial spraying. It also relies on sources drawn
from within Colombia, including “evidence acknowledging facts or conduct
9
unfavourable” to Colombia . Likewise, it relies on independent sources of
scientific evidence that are both contemporaneous and prepared in the context of
these proceedings. The Colombian Government itself — notably the Ministry of
Environment, the Office of the Comptroller General, and the National
Ombudsman (Defensoría del Pueblo ) — have confirmed the widespread harm
6Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 201, para. 57.
7
Ibid., p. 201, para. 58.
8
Ibid., p. 201, para. 61.
9Ibid.
8caused by the aerial fumigation programme and has recommended urgent changes
which have not been acted upon. Reports from the affected populations
throughout the frontier region 10and from neutral and reliable third parties,
including individuals and organizations of high international repute, support
Ecuador’s arguments. It is notable that the descriptions of the harm done to
human, animal, and plant health are strikingly consistent, and that the accounts of
harm in Ecuador are entirely congruous with accounts of similar harms endured
by Colombian populations, who have also been victims of Colombia’s aerial
spraying programme.
Section I. The Structure of the Memorial
1.14 This Memorial is presented in ten Chapters. Following this Introduction,
Chapter II presents the Factual Background necessary to understanding the
dispute, and in particular the context in which Colombia’s fumigations have taken
place. A first section addresses Ecuador’s affected border region, describing the
geographical setting, the natural environment and the people who inhabit the
region. Of particular importance for this case are the indigenous peoples, namely
the Awá, Cofán and Kichwa peoples, and the Afro-Ecuadorian communities in
Esmeraldas, all of whose rights have been gravely violated. A second section
addresses Colombia’s aerial sprayings. This fumigation programme was
implemented on a large scale in 1999 in order to eradicate illicit coca and poppy
plantations by chemical means, through the aerial spraying of herbicides across
large swaths of Colombian territory, including right up to, along, and in some
10
In the Bosnian Genocide Case the Court heard oral testimony from witnesses directly involved
and made reference to facts evidenced by decisions of the ICTY, by contemporaneous resolutions
of the United Nations Security Council and General Assembly, and by the reports of the United
Nations Secretary-General, a Commission of Experts, and United Nations Special Rapporteurs,
I.C.J. Reports 2007, paras. 211-230.
9cases, over the border with Ecuador. The stated goal of Colombia’s illicit crop
eradication strategy was to reduce the amount of coca cultivated in the country by
50% in six years, and in this and other respects it has failed to meet its objectives.
Remarkably, despite the emphasis given to the aerial spraying programme and
exponential increases in fumigations between 1999 and 2007, the number of
hectares under coca cultivation actually increased during this period 11. This
section also describes in detail the chemical content of the spray mixture used by
Colombia, to the extent possible in light of Colombia’s persistent refusal to
provide full information to Ecuador or its own population. The Chapter also
provides an account of the national and international criticism that has been
levelled at Colombia’s aerial fumigations.
1.15 Chapter III examines the History of the Dispute, from the first sprayings
in the vicinity of the Colombia-Ecuador border in 2000, right up to the filing of
the Application to the Court by Ecuador on 31 March 2008. The Chapter
describes Ecuador’s numerous diplomatic protests over a seven year period,
starting with the first diplomatic note that was communicated to Colombia on 24
July 2000, as well as the many bilateral meetings that took place at the highest
political levels in an unsuccessful effort to resolve the dispute. The Chapter
proceeds to describe Colombia’s persistent refusal to halt the aerial sprayings in
the face of clear evidence of their transboundary consequences, or to provide
Ecuador with the full details of the chemicals being used in the fumigations. It
charts the unsuccessful history of efforts to establish joint scientific commissions.
The Chapter also describes Colombia’s unilateral efforts to engage with the Inter-
American Drug Abuse Control Commission of the Organization of American
States, and the report that body produced, as well as the efforts undertaken by
11See infra Chap. II, paras. 2.52 et seq.
10various organs of the United Nations, including the reports prepared by Mr. Paul
Hunt, Special Rapporteur on the Right of Everyone to the Enjoyment of the
Highest Attainable Standard of Physical and Mental Health (“UN Special
Rapporteur on the Right to Health”), Mr Rodolfo Stavenhagen, Special
Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People (“UN Special Rapporteur on the Rights of Indigenous
People”), and Mr. Okechuwku Ibeanu, Special Rapporteur on the Adverse Effects
of the Movement and Dumping of Toxic and Dangerous Products and Wastes on
the Enjoyment of Human Rights. Despite the clear findings of these reports and
the efforts by Ecuador over a period of seven years, Colombia persisted in
continuing its aerial sprayings. On 27 July 2007 Ecuador sent a diplomatic note
to Colombia declaring that the diplomatic process had been exhausted, and
reserved its right to take such other steps as it deemed necessary to protect its
rights under international law.
1.16 Chapter IV addresses the Jurisdiction of the Court, which is based upon
Article 36(1) of the Court’s Statute, the Pact of Bogotá and the 1988 Narcotics
Convention. Ecuador’s case falls squarely within Article XXXI of the Pact of
Bogotá, which provides for the jurisdiction of the Court: the case concerns a
longstanding “dispute” of a “juridical nature” as to the effects of Colombia’s
aerial spraying programme, the resolution of which requires the Court to interpret
and apply numerous treaties – on a range of questions of international law – to
facts which, once established by the Court, will give rise to breaches of numerous
international obligations owed by Colombia to Ecuador. There are no other
provisions of the Pact of Bogotá to preclude the exercise of jurisdiction. The
Court also has jurisdiction under the 1988 Narcotics Convention, the scope of
which is very broad and covers all aspects of the dispute, including obligations in
11relation to the respect for sovereignty and territorial integrity, protection of the
environment and respect for fundamental human rights.
1.17 Chapter V sets out the scientific and technical materials, in examining
the Dangers Presented by Colombia’s Aerial Spraying . In this Chapter, Ecuador
demonstrates the inherent danger posed by the chemical spray used by Colombia.
A principle component is glyphosate, a powerful herbicide specifically designed
to kill all plants upon contact (even in very small quantities). The Chapter shows
how the combination of glyphosate with other chemical agents—some of which
Colombia refuses to disclose—makes the spray even more lethal, not only to
plants but to humans, animals and the environment. This Chapter also addresses
Colombia’s national experience, which establishes the toxicity of the chemical
mixture used in connection with the aerial fumigations, causing significant
damage to people, to plants and to animals located in Colombia itself.
1.18 Chapter VI describes the devastating Impact of Colombia’s Fumigations
in Ecuador. The Chapter proceeds in four substantive sections. Following the
introduction, Section II describes the harms Colombia’s fumigations have caused
to Ecuadorian people living throughout the frontier region. From the moment
fumigations along the border began in late 2000, people across the northern zone
began experiencing a number of adverse health effects, including, among others,
fever, eye and skin irritation, nausea, vomiting and diarrhea. Section III
addresses the damage the sprayings have inflicted on crops and wild plant species
in Ecuador. Innumerable hectares of the subsistence crops upon which the
impoverished border population depends have withered and died as a result of
exposure to Colombia’s herbicidal mix, as has an as-yet unmeasured amount of
the area’s abundant natural flora. Section IV describes the injuries endured by
wild and domestic animal species in Ecuador. Lastly, Section V addresses the
12special harm that Colombia’s programme of aerial spraying has caused to
Ecuador’s indigenous peoples living in the northern zone, including the Awá, the
Kichwa and the Cofán peoples. By disturbing the natural balance in the area,
Colombia’s fumigations have torn the very fabric of the unique cultural world the
indigenous communities inhabit.
1.19 There then follow three chapters that describe in detail Colombia’s serious
and wide-ranging violations of international law. Chapter VII addresses the
violation of Ecuador’s sovereignty and territorial integrity, describing the manner
in which Colombia’s actions and their deleterious transboundary consequences
have breached Ecuador’s most basic rights under international law. In this
Chapter, Ecuador explains how, by allowing the deposit and dispersal of harmful
chemicals over Ecuador’s territory, Colombia has failed to respect Ecuador’s
sovereignty and violated its international legal obligations arising both under
general international law and Article 2 of the 1988 Narcotics Convention.
1.20 Chapter VIII addresses Colombia’s violation of the obligation to prevent
transboundary harm and to protect the environment. It is divided into three parts.
The first part addresses Colombia’s failure to respect its duty to prevent
significant harm to persons, property, natural resources and the environment in
Ecuador, and its patent failure to take adequate – or any – precautionary measures
notwithstanding the real risk of harm that is inherent in the chemicals it has
chosen to spray at, on and across its border with Ecuador. The second part
addresses Colombia’s failures to cooperate in managing the transboundary effects
of the aerial sprayings of herbicides. Colombia’s failures are distinct, numerous
and cumulative under international law: it has failed to comply with its general
obligation to cooperate; it has failed to assess the potential transboundary effects
of aerial sprayings; it has failed to provide information to, or consult with,
13communities in Ecuador likely to be affected by the aerial sprayings; it has failed
to cooperate in the control of transboundary risks arising from aerial sprayings;
and it has failed to cooperate with Ecuador in accordance with the requirements
of Article 14 of the 1988 Narcotics Convention.
1.21 Chapter IX addresses Colombia’s violations of the rules of international
law in relation to the protection of fundamental human rights, the protection of
indigenous peoples and the right to a healthy environment. It is divided into two
parts. The first part stresses the critical importance of the human rights of
indigenous peoples in the present case and addresses the manner in which
Colombia’s actions have violated the obligation to protect the rights of
indigenous peoples as provided by special treaty provisions. The second part
addresses the violation of fundamental human rights held by the members of the
concerned Ecuadorian population, whether they belong to an indigenous people
or not. It describes Colombia’s violations of the right to life, the right to health,
the right to food, the right to water, the right to property, the right to a healthy
environment, the right to humane treatment, the right to private life, and the right
to information.
1.22 Finally, Chapter X deals with issues of International Responsibility .
This Chapter sets out the principles governing Colombia’s responsibility and
liability for the multiple, continuing violations of international law resulting from
its aerial spraying programme along the border since 2000. Specifically, these
violations have caused grave, continuing and long-lasting harms to Ecuador, its
sovereignty, its property and people, including indigenous peoples, and its
environment. In accordance with established principles of international law,
Ecuador seeks declaratory relief in relation to past and continuing illegalities
occasioned by Colombia’s actions, as well as relief to prevent Colombia from
14engaging in similar actions in the future, in the form of orders to cease and desist
from taking any actions that would violate its obligations to respect the
sovereignty and territorial integrity of Ecuador and to protect human rights, the
environment and the rights of indigenous peoples. In accordance with established
practise before the Court in relation to damages, at this stage of the proceedings
Ecuador seeks only a judgment from the Court that will identify the applicable
heads under which injury has been suffered and for which reparation arises.
Ecuador invites the Court to leave the assessment of monetary damages which are
due to Ecuador to a subsequent phase of the proceedings.
1.23 The Memorial also includes Annexes which set out (i) relevant
international instruments and other documents, (ii) the diplomatic correspondence
between the parties, (iii) legislative and administrative acts under national law,
(iv) the relevant scientific and technical materials, and (v) witness statements,
verification mission reports, media reports and other contemporaneous
documents.
1.24 The Memorial concludes by setting out the relief sought by Ecuador in its
Application. This relief requested falls under three heads: first, a declaration that
Colombia has violated its obligations under international law by causing or
allowing the deposit on the territory of Ecuador of toxic herbicides damaging to
human health, property and the environment; second , an order that Colombia
must indemnify Ecuador for all losses or damage caused by its internationally
unlawful acts; and third, a declaration that Colombia shall in the future respect
Ecuador’s sovereignty and territorial integrity and not repeat any of the acts that
have violated its international obligations.
15 CHAPTER II.
FACTUAL BACKGROUND2.1 This Chapter introduces the factual background necessary to understand
the setting in which the fumigations and the ongoing dispute with Colombia have
occurred.
2.2 Ecuador is a small country of approximately 14 million people located on
the northwest Pacific coast of South America. It is bordered to the north by
Colombia, with which its shares a land border of 717 kilometres, and to the south
and east by Perú.
2.3 Ecuador’s population is ethnically mixed; it is comprised of indigenous
peoples, caucasians, mestizos of mixed indigenous-caucasian descent, and Afro-
Ecuadorians. According to the United Nations, the country is home to 14
officially recognised indigenous nationalities that together make up as much as 30
percent of the total population 12. These indigenous communities play a vital role
in the life of Ecuador, and some of their populations have been disproportionately
affected in a negative way by Colombia’s aerial spraying.
2.4 Ecuador’s natural environment is also diverse. Indeed, it has the world’s
13
highest concentration of biological diversity . This natural wealth is particularly
great in the northern regions bordering Colombia, the area in which Colombia’s
aerial sprayings have occurred, much of which consists of dense tropical
ecosystems untouched by humankind.
12
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms
of Indigenous People, Rodolfo Stavenhagen, Mission to Ecuador (25 April-4 May 2006) ,
(hereinafter “Report of the Special Rapporteur on the Rights of Indigenous People”) U.N. Doc.
A/HRC/4/32/Add.2 (28 Dec. 2006), p. 2. EM, Vol. II, Annex 30.
13Ecuadorian Scientific Commission, The Plan Colombia Aerial Spraying System and its Impacts
on the Ecosystem and Health on the Ecuadorian Border (hereinafter “Ecuadorian Scientific
Commission Report”) (Apr. 2007), p. 23. EM, Vol. III, Annex 157.
192.5 The settlements along the border are inhabited almost entirely by poor
subsistence farmers and indigenous communities, including the Kichwa, Awá and
Cofán peoples, many of whom continue to reside on their ancestral lands located
in the area that is sprayed by Colombia.
2.6 Since 2000, life along the northern border with Colombia has changed
dramatically as a consequence of Colombia’s actions. That year, the Government
of Colombia intensified its controversial aerial spraying of chemical herbicides as
its principal means of attempting to reduce the illegal cultivation of coca plants,
the raw material used to produce cocaine. The increased aerial fumigations by
Colombia have been concentrated in Colombia’s southernmost provinces,
Putumayo and Nariño, which together make up the Respondent State’s border
with Ecuador. In Nariño Province alone, the area aerially sprayed with herbicides
increased over 600 percent from 6,442 hectares in 2000, to 36,275 hectares in
2007 14.
2.7 The specific ingredients and concentration levels of the chemical spray
mixture have never been revealed by Colombia. Colombia has persistently
refused to disclose the formulation of the individual ingredients of the spray
mixture. What is known is that the herbicidal compound contains a glyphosate-
based product the capacity of which to kill plants is fortified by other chemicals
known as surfactants or adjuvants. The spray has been designed to meet one goal
-- killing coca plants. It is, however, equally lethal to all plants. It cannot and
does not discriminate between illicit and licit plants; nor does it distinguish
14
United Nations Office on Drugs and Crime (UNODC), Coca Cultivation in the Andean Region,
A Survey of Bolivia, Colombia and Peru(hereinafter “UNODC Report on the Andean Region
2008”) (June 2008), p. 105. EM, Vol. II, Annex 25.
20between the two sides of an international frontier. Wherever it falls, the spray
kills -- that is its purpose.
2.8 In addition to their effects on plants, the chemicals in Colombia’s spray
mixture are widely recognised to cause damage to human and animal life.
Indeed, the product labels of commercially available forms of glyphosate-based
herbicides specifically warn of the dangers posed to human and animal health,
including the risk of skin and eye irritation, respiratory distress and
gastrointestinal illness. All these dangers have repeatedly been recognised by
observers both within and outside Colombia, including by organs of the
Colombian government itself. Nonetheless, Colombia persists with its policy of
conducting aerial fumigations with this toxic mixture.
* * *
2.9 Section I of this Chapter describes Ecuador’s northern border region,
including the geography, the natural environment and the people who inhabit the
area most affected by Colombia’s aerial fumigations. Section II describes
Colombia’s aerial sprayings, including the Respondent State’s increased reliance
on them, the nature of the chemicals sprayed, internal and international criticisms
levelled against their use, and their ineffectiveness in reducing coca crops in
Colombia.
Section I. Ecuador’s Border Region
A. T HE G EOGRAPHICAL SETTING
2.10 Ecuador and Colombia share a 717 kilometre land boundary running from
the northwest Pacific coast of South America deep into the tropical rain forests of
Amazonia where the borders of Ecuador, Colombia and Perú meet. The border
21region is comprised of three distinct geographic zones. The western coastal area
is characterised by dense mangroves abutting the sea and the Chocó rainforests
immediately inland. The central region is dominated by the Andes Mountains,
covered in its foothills by subtropical rainforests. To the east lie the tropical
jungles of Amazonia. On the Ecuadorian side, from west to east, lie the three
northern border provinces of Esmeraldas, Carchi and Sucumbíos. These are the
areas of Ecuador that have been affected most adversely by Colombia’s
fumigations. On the Colombian side, also from west to east, are the two border
provinces of Nariño and Putumayo. A map depicting the areas immediately
adjacent to the Ecuador-Colombia border is set forth on the following page.
22232.11 The Ecuador-Colombia land boundary is characterised by the significant
influence of water. For virtually all of its length, the frontier that divides Ecuador
and Colombia follows a series of rivers, including the Mataje, the San Juan, the
San Miguel and the Putumayo Rivers. These are shown in Sketch Map 2 below.
The border follows the erratic and sinuous path that the rivers themselves trace.
Along the rivers’ courses, dozens of tributaries from both the Colombian and
Ecuadorian sides flow into them. None of the border rivers are very wide; the
distance between the Ecuadorian and Colombian banks can be as little as fourteen
metres. Thus, when Colombia’s planes spray up to the border with Ecuador, they
are just metres from the Ecuadorian jungle and border communities on the other
side. They also deposit poisonous chemicals into the rivers, which then transport
them great distances. The chemicals thus cause serious harm to drinking water
supplies and freshwater sources used by people, animals and wildlife.
24 B. THE N ATURAL ENVIRONMENT
2.12 Ecuador boasts a tremendous diversity of ecosystems, including coastal
rainforests, Andean peaks and Amazonian rain forests. It is one of only 17
countries in the world designated as “megadiverse” by the World Conservation
Monitoring Centre of the United Nations Environment Programme . Although it
occupies just 0.17% of the Earth’s land area, Ecuador possesses a
disproportionately large share of the world’s biodiversity 16. It has the world’s
highest concentration of biological diversity; i.e., on average, there are more
species per square kilometre in Ecuador than anywhere else in the world 1.
2.13 According to the World Resources Institute, Ecuador has no fewer than
302 mammal species, 19,362 plant species, 640 breeding bird species, 415 reptile
18
species, 434 amphibian species and 246 fish species . Many of these species are
endemic. Among the over 400 known species of amphibians in Ecuador, for
15United Nations Environmental Programme, Glossary of Terms for Negotiators of Multilateral
Environmental Agreements (2007), p. 60, available at
http://www.unep.org/DEC/PDF/Glossary_terms%20_for_Negotiators_MEAs.pdf (last visited on
12 Apr. 2009).
16
Ecuadorian Scientific Commission Report, op. cit., p. 23. EM, Vol. III, Annex 157.
17Ibid.
18World Resources Institute, “Biodiversity and Protected Areas – Ecuador”, available at
http://earthtrends.wri.org/text/biodiversity-protected/country-profiles… on 31 Mar.
2009). EM, Vol. IV, Annex 243. Some of these figures may actually be understatements.
According to one authoritative source, for example, there are over 1600 bird species in Ecuador.
R. Ridgely and P. Greenfield, The Birds of Ecuador (2001).
For comparison, the United Kingdom, which is roughly equivalent in size to Ecuador, has 50
mammal species, 1623 plant species, 229 breeding bird species, 15 reptile species, 12 amphibian
species, and 427 fish species. World Resource Institute, “Biodiversity and Protected Areas –
United Kingdom”, available at http://earthtrends.wri.org/text/biodiversity-protected/country-
profiles.html (last visited on 31 Mar. 2009). EM, Vol. IV, Annex 244.
25instance, some 40% are found nowhere else in the world 19. Much of this wildlife
lives in the area that is being sprayed by Colombia.
2.14 Many of these species are also endangered. For example, approximately
40% of Ecuador’s amphibian species and 200 of its plant species are currently
20
endangered . Well over half of the threatened amphibians in the world reside in
21
the corridor that includes Ecuador’s border with Colombia . Ecuador’s unique
wealth of amphibian species is particularly important, given amphibians’ and
other aquatic species’ heightened vulnerability to the known ingredients in the
chemical spray Colombia uses, as will be addressed in Chapter V.
2.15 The environmental wealth of Ecuador’s northern border region, the area in
which Colombia’s toxic spraying has occurred, is particularly rich. Overall, some
40% of the land in the border provinces of Esmeraldas, Carchi and Sucumbíos is
22
covered by native forest . Two of the world’s biodiversity hotspots identified by
23
Conservation International encompass large portions of Ecuadorian territory .
19
The International Union for Conservation of Nature, Red List of Threatened Species,
“Amphibian Assessment, Geographic Patterns”, available at
http://www.iucnredlist.org/amphibians/geographic_patterns (last visited on 31 Mar. 2009).
20
Ibid.; World Resource Institute, “Biodiversity and Protected Areas – Ecuador”, op. cit. EM,
Vol. IV, Annex 243.
21
The International Union for Conservation of Nature, Red List of Threatened Species,
“Amphibian Assessment, Geographic Patterns”, op. cit.
22
See Colombian and Ecuadorian Ministries of Foreign Affairs, Integration Zone for the
Colombian-Ecuadorian Border: Binational Characterization Study (hereinafter, Binational
Characterization Study) (Sep. 2003), p. 24. EM, Vol. IV, Annex 238.
23
Conservation International, “Biodiversity Hotspots, Tropical Andes”, available at
http://www.biodiversityhotspots.org/xp/hotspots/andes/Pages/default.aspx (last visited 31 Mar.
2009); Conservation International, “Biodiversity Hotspots, Tumbes-Chocó-Magdalena”, available
at http://www.biodiversityhotspots.org/xp/hotspots/tumbes_choco/Pages/defa… (last visited
31 Mar. 2009). According to Conservation International, “[t]o qualify as a hotspot, a region must
meet two strict criteria: it must contain at least 1,500 species of vascular plants (> 0.5 percent of
the world’s total) as endemics, and it has to have lost at least 70 percent of its original habitat.”
26Taken together, the two hotspots -- Tumbes-Chocó-Magdalena and Tropical
Andes -- occupy well over half of Ecuador’s total land area. Both areas are home
to an abundance of animal and plant life that has yet to be fully documented by
science, and both overlap considerable portions of the Ecuador-Colombia
24
border . Both areas have been affected by Colombia’s chemical sprayings.
2.16 Ecuador has made substantial investments to preserve its vast natural
wealth. Approximately one quarter of its territory is made up of national parks
25
and protected areas . The three border provinces impacted by Colombia’s aerial
spraying contain a significant number of protected ecological reserves 26. A map
showing the location of these protected areas is depicted below at Sketch Map 3.
Conservation International, “Biodiversity Hotspots, Hotspots Defined”, available at
http://www.biodiversityhotspots.org/xp/Hotspots/hotspotsScience/pages/h…
(last visited on 31 Mar. 2009).
24Conservation International, “Biodiversity Hotspots, Tropical Andes”, op. cit.; Conservation
International, “Biodiversity Hotspots, Tumbes-Chocó-Magdalena”, op. cit.
25World Resource Institute, “Biodiversity and Protected Areas – Ecuador”, op.cit. EM, Vol. IV,
Annex 243.
26
Binational Characterization Study, op. cit., pp. 32, 34, 36, 37. EM, Vol. IV, Annex 238.
2728 C. T HE P EOPLE
2.17 Ecuador’s population of some 14 million comprises a large and diverse
mixture of peoples and cultures. The people living along the Ecuador-Colombia
border represent a particularly diverse and vulnerable spectrum of Ecuador’s
population, and include Afro-Ecuadorian communities near the coast, subsistence
farmers of mixed descent and a significant number of indigenous communities.
2.18 Ecuador is among the five Latin American countries with the largest
indigenous populations, some of whom have lived for generations along the
27
Ecuador-Colombia border . According to a 2006 report of the UN Special
Rapporteur on the Rights of Indigenous People, Mr. Rodolfo Stavenhagen,
Ecuador has 14 officially recognised indigenous nationalities constituting up to
30 percent of its total population 28. Sketch Map 4 on the following page draws
from a 1989 illustration by the Confederation of Indigenous Nationalities of
Ecuador (“CONAIE” per the Spanish initials) 29; it depicts the geographic
distribution of indigenous groups throughout the country, including those found
in the northern border zone.
27
World Bank, Indigenous People Still Lag Behind Despite Increased Political Powe, No.
2005/469/LAC (2005), available at http://go.worldbank.org/8EWGSMLWZ0 (last visited 1 Apr.
2009).
28Report of the Special Rapporteur on the Rights of Indigenous People, op. cit., p. 2. EM, Vol. II,
Annex 30.
29Available at, http://abyayala.nativeweb.org/ecuador/pueblos.php (last visited 6 Apr. 2009).
292.19 As the sketch map shows above, a number of the indigenous groups,
including the Awá, the Kichwa, and the Cofán, occupy areas immediately
abutting the Ecuador-Colombia border. Indeed, the Awá and Kichwa
communities overlap the border, reflecting the reality that indigenous
communities are not defined by international boundaries. Some indigenous
peoples live in specially-protected indigenous territories that abut the
international frontier, including the Awá Territory which straddles the
Esmeraldas-Carchi border and the Cofán Territory in Sucumbíos, both of which
are depicted on Sketch Map 3.
302.20 These indigenous groups have inhabited the border region for many
generations, and they are deeply connected to their lands and the rivers that unite
them. Indeed, these communities’ relationships with the landscape, including the
border rivers and their innumerable tributaries, predate the establishment of
modern States. Despite their specific cultural differences, the indigenous peoples
along the border share an abiding respect for and reliance on the natural
environment in which they live, in this case the tropical jungles of northern
Ecuador and the waters of the Mataje, San Juan, Putumayo and San Miguel
Rivers, among others.
2.21 Indigenous communities not only rely on the local plants, animals and
water for their physical survival, they also rely on them for their cultural well-
being and survival as communities. Plants are used as medicine to heal the sick
and as sacred elements used by spiritual leaders to carry out their work and
protect their communities. Rivers are considered sacred, as it is understood that
the water they give makes it possible for the communities to survive and prosper
in complex conditions. A leader of CONAIE, herself Kichwa, has described this
special relationship between land and people:
“for the indigenous people, the bond with Mother Earth prevails in
their lives. The land, the river, the natural forest are their sacred
places where they can be in contact with the plants. Their
relationship with the land, animals and the environment of their
territory is part of their being. Having to abandon their land is like
killing a part of the indigenous person, he loses his centre” 30.
Colombia’s sprayings have had disastrous consequences. As described in
Chapter VI, some indigenous people have been forced to leave their ancestral
30
Declaration of María Blanca Chancosa Sánchez (14. Jan. 2009), para. 6. EM, Vol. IV, Annex
187.
31homes due to the effects of Colombia’s aerial sprayings on plants, animals and
water resources.
2.22 In recent decades, the indigenous communities along Ecuador’s northern
border with Colombia have been joined by small, scattered settlements of poor
farming families. These farmers have come from the interior of Ecuador, as well
as Colombia, in search of new lands to cultivate. While some communities have
been established with the support of the Ecuadorian government, others have
been developed by the people themselves, often in very difficult circumstances.
The region remains undeveloped and lacks infrastructure. The scattered villages
are comprised largely of one and two-story hand-built houses with no windows
and dirt floors. Poverty is common among indigenous and non-indigenous
residents alike. According to Ecuadorian government statistics, the majority of
the residents in Esmeraldas, Carchi and Sucumbíos live on less than US$2 a
day 31, and about one-third of the residents in the three affected provinces survive
on less than US$1 a day . According to a 2006 United Nations report, “[i]n the
provinces of Esmeraldas and Sucumbíos, there are cantons and precincts with
33
poverty levels above 90%, particularly in the rural area.”
2.23 The poverty is especially severe in the rural communities abutting the
border with Colombia, since they are even further removed from the basic
resources available to the inland population centres. The dominant economic
activities are subsistence agriculture and artisanal fishing. The residents are
31
National Government of the Republic of Ecuador, “Plan Ecuador,” Section 3, Table 2 (citing
INEC, ENEMDU 2005; Census of Population and Housing 2001, ODNA), available at
http://www.mmrree.gov.ec/mre/documentos/pol_internacional/plan_ecuador/… EM,
Vol. IV, Annex 235.
32
Ibid.
33United Nations, Report on the Preliminary Technical Mission of the United Nations(April
2006), p. 14. EM, Vol. II, Annex 28.
32dependant on the crops and animals they raise themselves. Typical subsistence
crops include yucca, maize, plantains, coffee and other basic foodstuffs. For most
people along the international frontier, the only source of cash is selling whatever
may remain after the family has been fed. Often, that is nothing. A 2001
Ecuadorian government study found that nearly one-third of all the residents in
rural areas of Esmeraldas, Carchi and Sucumbíos, including children, suffered
34
from chronic malnutrition .
2.24 As noted, basic infrastructure in the affected area is minimal. Electricity
is rare. Roads are usually no more than hardened dirt paths and, where it exists at
all, public transportation (via an occasional bus) is scarce and infrequent.
Communication with the outside world, and even other villages in the region, is
generally limited to periodic radio contact.
2.25 This lack of infrastructure is particularly serious in relation to water.
Access to running water is scarce . Residents of the border area depend heavily
on clean water from the rivers -- the Mataje, the San Juan, the San Miguel and the
Putumayo -- that together comprise most of the border. The rivers are used for an
array of purposes ranging from drinking and cooking, to fishing, bathing,
washing clothes and recreation. The rivers also afford a means of transportation
in a region characterised by dense jungles and few roads. As such, the rivers
constitute an essential element of daily life. Thus, when Colombia’s spray planes
drop their herbicidal mixture over and adjacent to the rivers which form the
border, the chemicals are dumped in the local population’s only source of fresh
34Ibid., p. 24.
35National Institute of Statistics and Censuses (INEC), Data on Running Water (2001). EM, Vol.
IV, Annex 234.
33water. They are then carried downstream to additional communities and
ecosystems, affecting wildlife, fisheries and subsistence agriculture.
2.26 Those who fall ill in these remote areas along the border have only limited
access to medical facilities . Even the most rudimentary medical centres, not to
mention hospitals, are located hours away. The areas of Sucumbíos affected by
Colombia’s aerial sprayings are typical of the entire region. The closest hospital
is located in the provincial capital, Nueva Loja (also commonly known as “Lago
Agrio”), which is more than an hour’s bus ride away from even the nearest
communities along the international frontier. Yet, even that overstates the
hospital’s accessibility. The round-trip bus fare is US$4-5 per person, a
prohibitive sum for people surviving on less than a dollar per day. Most
indigenous communities are even more isolated; they are frequently located
several hours by motorised canoe away from population centres of any size. The
result is that border residents, indigenous and non-indigenous alike, only go to
urban clinics or hospitals in the most dire cases.
2.27 Given these realities, the primary means of treatment is medication with
local plants. In keeping with their traditions, the indigenous communities in
particular rely on local medicinal plants, which their healers have used to treat the
sick for centuries. In recent years, however, even this care has been harder to
obtain. As described in Chapter VI, many traditional medicinal plants have been
harmed or killed by Colombia’s chemical sprayings.
36
According to a 2004 United Nations report: “In terms of health services, human and service
indicators, both for inpatient and outpatient service, show values of less than the national and
regional averages. The situation in some cases is critical: the supply of beds (for patients) for
each 1,000 inhabitants is half the national average, and in the case of Sucumbíos it is one-third,
with the aggravating factor that the majority of attention centers are private.” United Nations, The
Northern Border of Ecuador: Evaluation and Recommendations of the Interagency Mission of the
United Nations System in Ecuador (July 2004), p. 18. EM, Vol. II, Annex 27.
342.28 These already precarious conditions in the border zone have been
exacerbated by the effects of the long-standing civil conflict between the
Government of Colombia and opposition guerrillas, including the Revolutionary
Armed Forces of Colombia (“FARC”, per the Spanish initials). Colombia’s
southern zones, particularly the remote areas abutting Ecuador, have long been
viewed as FARC strongholds. According to the Netherlands Interdisciplinary
Demographic Institute, the flow of refugees seeking to escape the violence in
Colombia has been considerable: “In its recently prepared operational plan for
2007 and beyond (UNHCR, 2006), the United Nations High Commissioner for
Human Rights notes that there could be as many as 450,000 Colombians in
Ecuador and that those in need of international protection and assistance could be
as high as 250,000.” 37 By December 2008, Ecuador had received more than
68,500 applications for refuge from Colombians. The refugees are concentrated
in the Ecuadorian border provinces of Esmeraldas, Carchi and Sucumbíos, as well
as Imbabura and Pichincha further to the south. The Government of Colombia's
aerial sprayings have been a major contributing factor to the recent increase in
38
flow of displaced persons to Ecuador .
37Richard E. Bilsborrow and CEPAR, The Living Conditions of Refugees, Asylum-seekers and
other Colombians in Ecuador, Ecuador Country Report (Oct. 2006), p. 7. EM, Vol. IV, Annex
240.
38
See, e.g., Consuelo Ahumado Beltrán and Alvaro Moreno Durán, “Priorities of the New World
Order and Forced Displacement of Colombians towards Ecuador,” Cadernos PROLAM/USP,
Year 3, Vol. 1 (2004), pp. 46, 47, 54, available at
http://www.usp.br/prolam/downloads/2004_01_03.pdf. EM, Vol. IV, Annex 239; see also
Government of Putumayo, Government of Nariño, et al., Declaration of Puerto Asís (8-9 Sept.
2000), available at http://asamblea.atarraya.org/documentos/Paz-Colombia5-PUTUMAYO.html
(“[t]he fumigations...promote displacement”). EM, Vol. II, Annex 89; Declaration of Colombia
Witness 3, 20 Feb. 2009. EM, Vol. IV, Annex 227; Declaration of Witness 3, 17 Jan. 2009. EM,
Vol. IV, Annex 191.
352.29 This is the geographical, environmental and social context in which
Colombia has implemented its programme of aerial spraying. It is to the details
of this programme that the next section of this Chapter now turns.
Section II. Colombia’s Aerial Sprayings
A. B ACKGROUND
2.30 Over 55% of the world’s coca (Erythrozyllum coca), the plant from which
39
cocaine is made, is grown in Colombia . Colombia is also one of the world’s
largest producers of opium poppy (Papaver somniferum) and a significant source
of marijuana ( Cannabis sativa ). According to the 2008 World Drug Report
published by the United Nations Office on Drugs and Crime (“UNODC”), more
than 99,000 hectares of Colombian territory were dedicated to coca cultivation in
40
2007, an increase of nearly 30% over 2006 . By contrast, coca was cultivated on
fewer than 100 hectares of Ecuador’s territory 41. Ecuador has prevented the
proliferation of coca cultivation on its territory without resort to aerial spraying.
2.31 The Government of Colombia has, over time, employed a variety of
tactics in its efforts to combat illicit narcotics crops, including manual eradication
(by which the coca plant is extracted from the ground by hand and destroyed),
alternative development programs (by which farmers are given incentives to
replace coca with legal crops) and aerial fumigation.
39United Nations Office on Drugs and CrimeWorld Drug Report (2008), p. 13. EM, Vol. II,
Annex 26.
40
Ibid., p. 8. EM, Vol. II, Annex 26.
41UNODC Report on the Andean Region 2008, op. cit., p. 7. EM, Vol. II, Annex 25.
362.32 Aerial fumigation involves spraying chemical herbicides over coca fields
from airplanes designed or retrofitted for this purpose. The constituent
ingredients of the spray compound are mixed on-site at Colombian airfields
42
where they are then loaded onto the aircraft . After take off, the spray planes
43
locate coca fields and target them with the herbicidal mist , as shown in the
photograph below, which was provided by Colombia’s Narcotics Police Force to
the UNODC. According to official sources, sprayings are conducted when the
44
airplanes are as high as 50 metres or more above the ground and travelling at
speeds of up to 200 miles per hour (322 km/hr) 45. Owing to the remoteness of the
regions in Colombia where many of the fumigations are carried out, together with
the fact that many of these same regions have a significant FARC presence, the
spray planes are frequently accompanied by military helicopters to provide
security .6
42 See United States Department of State, Bureau for International Narcotics and Law
Enforcement Affairs, Report on Issues Related to the Aerial Eradication of Illicit Coca in
Colombia: Chemicals Used in the Aerial Eradication of Illicit Coca in Colombia and Conditions
of Application (hereinafter “Chemicals Used”) (Sep. 2002), p. 2, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/13234.htmlast visited 2 Apr. 2009). EM, Vol. III, Annex
144.
43
See United States Department of State, Bureau for International Narcotics and Law
Enforcement Affairs, Report on Issues Related to the Aerial Eradication of Illicit Coca in
Colombia: Updated Report on Chemicals Used in the Aerial Eradication Program (hereinafter
“Updated Report on Chemicals Used”) (Dec. 2003), p. 1, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/26581.htm EM, Vol. III, Annex 148.
44See Republic of Colombia, Environmental Management Plan for the Illicit Crop Eradication
Program Using Aerial Spraying with the Herbicide Glyphosate (ICEPG) (2003), p. 2, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/27399.htm(last visited 2 Apr. 2009). EM, Vol. II, Annex
95.
45 See United States Department of Agriculture, April 2001 Colombia Coca Eradication
Verification Mission Trip Report (13 June 2001). EM, Vol. III, Annex 140.
46See Keith R. Solomon et al., Environmental and Human Health Assessment of the Aerial Spray
Program for Coca and Poppy Control in Colombia, prepared for the Inter-American Drug Abuse
Control Commission (CICAD), Organization of American States, (hereinafter “CICAD Report”)
(31 Mar. 2005), p. 30. EM, Vol. III, Annex 151.
37 Aerial Spraying over Colombian Coca Fields
Source: United Nations Office on Drugs and Crime (UNODC), Colombia Coca
Cultivation Survey (June 2005), p. 64 (Photo provided by the Colombian Government).
2.33 Aerial fumigations were first employed by Colombia in the 1980s. From
the outset, the practice met opposition from affected populations, policy-makers,
international observers and scientists. As early as 1984, the Government of
Colombia, through its National Health Institute, convened a group of herbicide
experts to consider the potential harms from aerial spraying. The experts strongly
opposed aerial spraying, especially spraying with glyphosate, a powerful
herbicide that kills all plants upon contact, and whose effects on human health
have not been fully documented. The experts stated:
“Glyphosate: It is not recommended for aerial application to
destroy marijuana and coca crops. Data obtained in animal
experiments show low acute toxicity; little is known of its acute
toxicity in humans. There is no information, in the literature
38 consulted, about chronic toxicity in humans. Nor is there
information regarding mutagenic and teratogenic effects….” 47
2.34 The experts subsequently reiterated their opposition stating:
“[T]he Committee reiterates its opposition of not recommending
the use of glyphosate or any other herbicide by aerial application
for the destruction of marijuana crops … the implementation of
the program is advised against because it would be accepting
48
experimentation on humans.”
2.35 Notwithstanding the recommendations of its own experts, Colombia
adopted and continued the practice. Until the late 1990s, however, it remained a
secondary tool in the struggle against illegal narcotics.
2.36 A significant change occurred in late 1999 when, in response to the
growth in coca crops, the Government of Colombia decided to make aerial
fumigations its primary means of combating illicit coca cultivation. Colombia’s
stated goal was to reduce the amount of coca cultivated in the country by 50% in
six years . In fact, between 2000 and 2006 the coca cultivation in Colombia
increased by 15%, despite persistent and widespread aerial spraying of coca
47Ecuadorian Ministry of Environment, et al., Impacts in Ecuador by the Fumigations Carried
Out in the Putumayo Department under Plan Colombia (July 2003), p. 2. EM, Vol. III, Annex
166.
48Ibid.
49
See United States Government Accountability Office, Plan Colombia: Drug Reduction Goals
Were Not Fully Met, but Security Has Improved; U.S. Agencies Need More Detailed Plans for
Reducing Assistance (hereinafter “Plan Colombia: Drug Reduction Goals Were Not Fully Met”)
(Oct. 2008), pp. 1, 4. EM, Vol. IV, Annex 242.
39 50
crops, including in the border region . Independent observers have concluded
51
that Colombia’s aerial spraying program has not been effective .
2.37 Colombia has refused to provide the full details of its aerial spraying
programme, including dates, locations and quantities of chemicals used. What is
known is that a large proportion of the aerial sprayings have been concentrated in
the two provinces bordering Ecuador, Putumayo and Nariño. As illustrated in
figure below, Nariño and Putumayo provinces have received nearly half of all
chemical spraying in Colombia 52. By comparison, the combined land area of
Putumayo and Nariño make up barely five percent of Colombia’s total land area.
According to official Colombian statistics, the Respondent State fumigated 4,980
hectares in Putumayo in 1999, the year before aerial fumigation along the
53
Ecuadorian border began . Over the following years, that number increased by
as much as twenty fold. In 2002, Colombia sprayed 71,891 hectares in Putumayo
54
(equal to approximately 140,000 football pitches) . Nariño is similar. In 1999,
no fumigations were conducted in the province; in 2000, 6,442 hectares were
55
fumigated; and in 2006 the number rose to 60,000 hectares .
50Ibid., p. 18. EM, Vol. IV, Annex 242. Coca cultivation estimates from United Nations and
United States agencies vary widely due to technical and methodological differences. United
Nations estimates show that in 2006 coca cultivation had decreased to under 100,000 hectares.
UNODC Report on the Andean Region 2008, op. cit., p. 64. EM, Vol. II, Annex 25.
51 See infra Chap. II, Sec. II.C. “Internal and International Criticisms.” See also generally,
International Crisis Group, Latin America Report No. 25 Latin American Drugs I: Losing the
Fight (14 Mar. 2008), available at http://www.crisisgroup.org/home/index.cfm?l=1&id=5327 .
52See UNODC Report on the Andean Region 2008, op. cit., p. 102. EM, Vol. II, Annex 25.
53See ibid.
54
Ibid.
55
Ibid.
40 Aerial Spraying of Coca Crops in Putumayo and Nariño, Aerial Spraying of Coca
Crops in Colombia (Ha),
Colombia (Ha), 2000-2007 2000-2007
90000
80000
552,490 463,398
70000
60000 All other Nariño and
provinces Putumayo
50000
40000
30000
20000
10000
0
2000 2001 2002 2003 2004 2005 2006 2007
Year
B. T HE S PRAY M IXTURE
2.38 Colombia has consistently refused to disclose the full details of the
chemicals that it uses in the spray. What is known is that the spray used by
Colombia is a mixture of a chemical herbicide and other ingredients designed to
maximise its toxicity to plants. As early as 16 February 2001, soon after the first
fumigations were carried out in the border area, Ecuador requested information
56
concerning the composition of the spray . Colombia refused to provide it then,
and has refused to provide the information ever since. To this date, despite
repeated requests, Colombia has refused to disclose to Ecuador (or to make
public) the precise composition of the spray mixture or to identify all of the
57
ingredients .
56See infra Chap. III, para. 3.9.
57
See e.g,, infra, Chap. III, paras. 3.2, 3.9-3.10, 3.68, 3.78.
412.39 The nature of the coca plant is such that powerful herbicides are required.
Coca is a hardy plant that is difficult to kill. Its natural defences include a waxy
surface coating on its leaves and a woody stem. Although Colombia has refused
to detail the precise contents of its spray mix, it is known that the primary
“active” ingredient is glyphosate, a chemical that is widely used -- under strictly
58
regulated conditions -- as a weed killer . Glyphosate enters plants through their
leaves and kills them by inhibiting an essential biological mechanism common to
59
all plants . It is desirable as an herbicide precisely because of its non-selective,
broad-spectrum characteristics. It kills virtually any plant it touches.
2.40 Colombia claims that the aerial spray mixture is harmless to humans and
to food crops. These claims are contradicted by the manufacturer of the most
widely-used glyphosate-based chemical herbicide, which bears the brand name
“Roundup.” Colombia has not disclosed which, if any, of the various Roundup-
based products it has been using. Official sources indicate that, at least for some
60
time, one of the most toxic formulations available was used . Roundup products
marketed around the world contain explicit warnings and their use is heavily
regulated. An example of a label taken from a Roundup product produced in the
United States and marketed throughout the world is depicted below.
58See United States Department of State, Chemicals Used, 2002, op. cit., p. 1. EM, Vol. III,
Annex 144; United States Department of State, Updated Report on Chemicals Used, op. cit., p. 1.
EM, Vol. III, Annex 148.
59See Keith R. Solomon et al., CICAD Report, op. cit., p. 21. EM, Vol. III, Annex 151; United
States Environmental Protection Agency, Office of Prevention, Pesticides and Toxic Substances,
Report on Issues Related to the Aerial Eradication of Illicit Coca in Colombia, Response from
EPA Assistant Administrator Johnson to Secretary of State,(hereinafter “EPA 2002 Analysis”)
(19 Aug. 2002), p. 5, available at http://www.state.gov/p/inl/rls/rpt/aeicc/13237.htmt visited
26 Mar. 2009). EM, Vol. III, Annex 143; United States Roundup Pro Label, p. 2, Sec. 5.0. EM,
Vol. III, Annex 128.
60EPA 2002 Analysis, op. cit., p. 8. EM, Vol. III, Annex 143.
42“Hazards to Humans and Domestic Animals
Keep out of reach of children.
DANGER!
CAUSES IRREVERSIBLE EYE DAMAGE.
HARMFUL IF SWALLOWED OR INHALED.
MAY CAUSE SKIN IRRITATION.
Do not get in eyes, on skin or on clothing.
Wear goggles or face shield.
Avoid breathing vapour or spray mist. …
FIRST AID:
IF IN EYES, immediately flush with plenty of water for at least 15
minutes. Get medical attention.
IF ON SKIN immediately flush with plenty of water. Remove
contaminated clothing. Wash clothing before reuse.
IF SWALLOWED, this product will cause gastrointestinal tract
irritation. … Get medical attention. …
IF INHALED, remove individual to fresh air. Get medical
attention if breathing difficulty develops.
ATTENTION
AVOID DRIFT. EXTREME CARE MUST BE USED WHEN
APPLYING THIS PRODUCT TO PREVENT INJURY TO
DESIRABLE PLANTS AND CROPS.
Do not allow the herbicide solution to mist, drip, drift or splash
onto desirable vegetation since minute quantities of this product
43 can cause severe damage or destruction to the crop,61lants or other
areas on which treatment was not intended.”
2.41 Roundup’s toxicity is derived not only from the active ingredient
glyphosate but also from other chemicals known as surfactants or adjuvants that
62
are added to the chemical mix to enhance the herbicide’s ability to kill plants . It
is known that surfactants are especially important in Colombia’s aerial
fumigation program because they help the mixture penetrate the waxy leaves and
63
woody stems of the coca plant . Surfactants not only make the spray more toxic
to coca plants, they also enhance the danger to humans and animals, and to food
crops, as described in more detail in Chapter V. Ecuador believes -- but does not
know for certain -- that the Roundup product that Colombia uses in its aerial
sprayings contains at least one surfactant known as polyethoxyethylene
alkylamine (“POEA”) . POEA is widely known to be harmful, not least because
it is corrosive to the eyes and causes skin irritation. POEA has also been linked to
even more serious health effects . 65
61United States Roundup Export Label. EM, Vol. III, Annex 125.
62CICAD Report, op. cit., pp. 23–24. EM, Vol. III, Annex 151; EPA 2002 Analysis, op. cit., p. 5.
EM, Vol. III, Annex 143.
63
See Chemicals Used, op. cit., pp. 1–2. EM, Vol. III, Annex 144; Updated Report on Chemicals
Used, op. cit., p. 3. EM, Vol. III, Annex 148.
64
EPA 2002 Analysis, op. cit., p. 10. EM, Vol. III, Annex 143; United States Environmental
Protection Agency, Office of Pesticide Programs, Details of the 2003 Consultation for the
Department of State: Use of Pesticide for Coca and Poppy Eradication Program in Colombia
(hereinafter “EPA 2003 Analysis”) (June 2003), p. 13, available at
http://www.state.gov/documents/organization/27516.pdf (last visited 26 March 2009). EM, Vol.
III, Annex 146.
65Republic of Colombia, National Health Institute, Evaluation of the Effects of Glyphosate on
Human Health in Illicit Crop Eradication Program Influence Zones (2003), p. 5, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/57013.htmlast visited 26 Mar. 2009). EM, Vol. II,
Annex 96; EPA 2003 Analysis, op. cit., p. 13. EM, Vol. III, Annex 146.
442.42 Reports indicate that the herbicidal mixture Colombia uses includes
another surfactant known as Cosmo-Flux 411F -- a product that is believed to be
manufactured only in Colombia 66. The chemical composition of Cosmo-
Flux411F is unknown to Ecuador and Colombia has refused to disclose the
67
formula, despite Ecuador’s requests . What is known is that Cosmo-Flux
enhances (perhaps by a factor of four) the biological effects of glyphosate,
thereby making the spray even more toxic to its intended target as well as off-
target plants and those humans who are unfortunate enough to come into contact
68
with it . Despite a decade of mass fumigations, the Roundup/POEA/Cosmo-
Flux combination has not been subjected to a verifiable, independent study for
69
safety to humans or animals .
2.43 Various governmental reports (including from the United States, a
financial backer of Colombia’s aerial fumigation programme) indicate that
additional substances have been included in the spray mixture, including
formaldehyde, a pathogenic fungus called Fusarium oxysporum, and others 70.
Adding to the uncertainty, different spray mixtures appear to have been used over
66Chemicals Used, op. cit., p. 2. EM, Vol. III, Annex 144; EPA 2003 Analysis, op. cit., pp. 13–
14. EM, Vol. III, Annex 146.
67EPA 2003 Analysis, op. cit., pp. 13-14. EM, Vol. III, Annex 146; Comptroller General of the
Republic of Colombia, Plan Colombia: Fourth Evaluation Report (hereinafter “Comptroller
General Fourth Evaluation Report”) (July 2003), p. 35. EM, Vol. II, Annex 98; see e.g, infra ,
Chap. III, paras. 3.2, 3.9-3.10, 3.68.
68Cosmoagro, S.A., Cosmo-Flux 411F, available at http://www.cosmoagro.com (last visited 1
Mar. 2009). EM, Vol. III, Annex 112.
69EPA 2003 Analysis, op. cit., p. 37. EM, Vol. III, Annex 146.
70 Report of the Special Rapporteur on the Right to Food, Jean Ziegler, Addendum:
Communications Sent to Governments and Other Actors and Replies Received , (hereinafter
“Special Rapporteur on the Right to Food, Communications”) U.N. Doc. A/HRC/4/30/Add.1 (18
May 2007), para. 17. EM, Vol. II, Annex 33; “Fumigation with Fungus Confirmed”, L A H ORA
(Quito, Ecuador, 23 Aug. 2000). EM, Vol. IV, Annex 173; United States Department of
Agriculture, April 2001 Colombia Coca Eradication Verification Mission Trip Report (13 June
2001). EM, Vol. III, Annex 140.
45time. For example, a 2002 report from the Environmental Protection Agency
(“EPA”) of the United States of America suggested that the spray mixture should
be adjusted in order to reduce the substantial toxicity to humans of the mix that
was previously utilised. The U.S. EPA report states that
“due to the acute eye irritation caused by the concentrated
glyphosate formulated product and the lack of acute toxicity data
on the tank mixture the Agency recommends that DoS
[Department of State] consider using an alternative glyphosate
product with lower potential for acute toxicity in future coca
and/or poppy aerial eradication programs” 7.
Exactly what adjustments have been made to the spray mixture over time are
unknown, because Colombia has consistently refused to publicly disclose or
advise Ecuador as to the composition of the spray, or of any modifications to it.
What is known, as detailed in Chapters V and VI, is that whatever the contents of
the spray may be, it has caused extensive harm to people, to animals and to crops
in both Colombia and Ecuador wherever and whenever it has been used.
C. INTERNAL AND INTERNATIONAL C RITICISMS
2.44 Colombia’s increased reliance on the aerial fumigation of coca plants has
been the subject of strong and persistent criticisms. It suffices for present
purposes to provide a few illustrative examples of the nature and force of the
objections.
2.45 Some of the strongest opposition to the sprayings has come from within
Colombia, including from public authorities and officials of the Respondent State
itself. On 12 February 2001, for example, the Colombian Ombudsman’s Office
71
EPA 2002 Analysis, op. cit. p. 8. EM, Vol. III, Annex 143.
46 72
(“Defensoría del Pueblo”) issued a resolution recommending that the National
Narcotics Directorate immediately suspend the fumigations then taking place in
Putumayo Province. The Ombudsman’s Office stated that:
“As it has been shown, the fumigations condemned by this
resolution destroyed not only the illicit crops – the target of
manual eradication – but also other species necessary for the
household subsistence of the beneficiaries of the pacts. Now,
these people and communities are facing both the ruin of their
household finances as well as a severe food security problem.
Given the precarious conditions of this group of people, the action
by the State gives rise to a violation of their right to subsistence,
which translates into a serious harm to the physical integrity and
dignity of the family and its members.” 73
2.46 Also in February 2001, the Colombian Ombudsman’s Office published a
report entitled “Fumigations and Alternative Development Projects in
Putumayo”. It stated:
“The Office of the Ombudsman has repeatedly solicited from the
Government a review of the Policies of the War on Drugs and,
particularly, the suspension of the Aerial Eradication of Illicit
Crops strategy throughout the country … In effect, the form in
which the strategy of aerial fumigation of illicit crops has been
carried out, in addition to having demonstrated its ineffectiveness
– with the constant expansion of these crops within the country –
has disregarded principles and norms which aimed at ensuring
public health, protection and conservation of the environment, and
the special protection which the State must provide to the most
vulnerable. …
72
In both Colombia and Ecuador (and, indeed, throughout Latin Am erica) the Office of the
Ombudsman (“ Defensoría del Pueblo”) is a public authority of vital importance, the structure
and functions of which are established by the Constitution (Arts. 281-284 of the Colombian
Constitution; Arts. 214-216 of the Ecuadorian Constitution). Its primary objective is to protect the
people’s individual and collective human rights from any acts by governmental agencies or, in
certain cases, private persons, that may violate those rights.
73Republic of Colombia, Office of the Ombudsman, Ombudsman Resolution No. 4 (12 Feb.
2001), p. 4. EM, Vol. II, Annex 92.
47 In such circumstances, among others later to be mentioned, in the
judgment of this Institution, the execution of the Program for the
Eradication of Illicit Crops does not comply with constitutional
74
norms”.
2.47 The Ombudsman’s Office was joined by another state organ, the
Comptroller General of Colombia 75(“Contraloría General de la República ”), in
opposing the Government’s aerial spraying program. In December 2001, the
Office of the Comptroller General submitted a report entitled “Plan Colombia:
Second Evaluation Report,” which stated:
“Those responsible for implementing the eradication policy say
that there is no scientific certainty with regard to its effects on
human health and ecosystems; however, there are documents,
university investigations, and environmental audits, in our
country, on the effects on human health that report that glyphosate
inhalation causes irritation to the nose and throat; moreover,
contact causes skin irritation. At the same time, oral ingestion
produces nausea, vomit, abdominal pain and epigstralgia.” 76
The Comptroller General’s report continued:
“The profound differences of opinion mentioned above,
concerning the type and magnitude of the effects of glyphosate on
ecosystems and human health; in addition, to doubts on the exact
composition of the mixture sprayed, make credible the existence
of a real danger due to the spraying in question. Suspicion that is
74
Republic of Colombia, Office of the Ombudsman, The execution of the strategy for aerial
eradication of illicit crops, with chemicals, from a constitutional perspective , pp. 1-2. EM, Vol.
II, Annex 102.
75The General Comptroller of the Republic (“Contraloría General de la República”) is the
Colombian public authority in charge of monitoring the correct use and administration of public
funds by governmental agencies or private entities that manage public funds. Accordingly, all
public officers are answerable to the Comptroller General for the lawful use of public funds. Its
organization and functions are established by Articles 267 et seq. of the Colombian Constitution.
76Comptroller General of the Republic of Colombia, Plan Colombia: Second Evaluation Report
(10 Dec. 2001), p. 43. EM, Vol. II, Annex 94.
48 reinforced when considering that no authority exercises control
over the nature and consequences of said sprayings.” 77
2.48 In June 2003, the Colombian Ministry of the Environment sanctioned the
National Narcotics Directorate (“DNE” per the Spanish initials), the agency
responsible for carrying out the aerial fumigations, for failing to evaluate the
potential environmental damage caused by the fumigations and for refusing to
conduct environmental impact studies during spray campaigns . 78
2.49 Also in June 2003, the Administrative Tribunal of Cundinamarca (the
province in which Bogotá is located) issued an order mandating the suspension of
the aerial fumigations. The Administrative Tribunal further ordered the
Colombian Ministry of Social Security and the National Institute of Health to
conduct cohort studies on the effects of the aerial spraying on the health of
Colombians, as these effects had not been previously studied. In response to the
Administrative Tribunal’s order, the Government of Colombia announced that it
would not obey, and that aerial fumigations would continue. 79 President Álvaro
Uribe stated: “Let’s be honest, I will not stop the sprayings and as long as I am
President, we will not agree on that issue.” 80
2.50 The objections of the Colombian authorities have strong support amongst
international observers, including governments and international organisations.
77
Ibid.
78Republic of Colombia, Ministry of Environment Resolution No. 0670, Whereby a sanction is
imposed and other decisions are made (19 June 2003), paras. 2, 5, 3.1, 3.2. EM, Vol. II, Annex
19.
79“Colombia: Spraying Suspended”, BBC (26 June 2003). EM, Vol. IV, Annex 175.
80
Interamerican Association for Environmental Defense (AIDA), The Plan Colombia Aerial
Eradication Program for Illicit crops – An analysis of the 2003 Dept of State Certification to
Congress (25 Feb. 2004), p. 17. EM, Vol. IV, Annex 168.
49A number of United Nations Special Rapporteurs have visited affected areas and
voiced strong objections to the aerial spraying programme. Following his visit to
Ecuador in April and May 2006, for example, the UN Special Rapporteur on the
Rights of Indigenous People, Mr. Rodolfo Stavenhagen, issued a strongly worded
report which noted that: “International studies indicate that this practice [aerial
fumigations] has negative effects on environmental resources and the health of
people and animals.” Based on his observations, Mr. Stavenhagen recommended
that “Colombia definitively halt the aerial spraying of illicit crops in the border
81
region with Ecuador.”
2.51 In an open letter submitted to the United States Congress in November
2001, the World Wildlife Fund stated its strong opposition to the sprayings:
“The damage caused by drift, spraying on non-target areas, and
misapplication of the pesticide is a significant concern, and is one
of the reasons that the manufacturer does not recommend aerial
application of glyphosate. ...
Additionally, widespread aerial fumigation is a concern. Very
little concrete information and few data are available comparing
conditions subsequent to aerial fumigation to pre-spraying
conditions. Tropical soils treated with glyphosate are likely to be
altered. Further, defoliated areas will be subject to increased
erosion under the heavy rainfall conditions common to the sprayed
areas, and river systems may carry glyphosate to non-target
regions, even neighbouring countries.
As a result of all of these issues we remain alarmed about the
potential, long-term, devastating consequences on the Colombian
82
environment, one of most biologically rich places on the planet.”
81Report of the Special Rapporteur on the Rights of Indigenous Peopleop. cit., paras. 85-86
(emphasis added). EM, Vol. II, Annex 30.
82
World Wildlife Fund, “Letter from World Wildlife Fund Regarding Herbicide Spraying in
Colombia” (21 Nov. 2001), available at http://www.ciponline.org/colombia/112101.htm. EM,
Vol. IV, Annex 236.
502.52 A 2002 report prepared by the United States-based Institute for Science &
Interdisciplinary Studies stated:
“1) Aerial spraying has a significant negative impact on the lives
of large numbers of people, particularly the rural poor, in
Colombia. There is strong evidence linking the spraying with
serious human health effects; large-scale destruction of food crops;
and severe environmental impacts in sensitive tropical ecosystems.
There is also evidence of links between fumigation and loss of
agricultural resources, including fish kills and sickness and death
of livestock.
“2) Many of the reported effects are consistent with the known
effects of the chemicals used and with the manner in which they
are applied. Reports of even more serious effects highlight the
need for further study of hazards posed by the particular mix being
used in Colombia.
“3) Criticisms and complaints are based on sound facts and come
from a wide range of respected national and international
individuals and organizations -- not from unreliable or self-
interested sources as U.S. government sources often suggest”.3
2.53 The objections are widespread and consistent. Even so, Colombia has
persisted in its approach notwithstanding the apparent failure of the programme
over the past nine years.
D. A ERIAL F UMIGATIONS H AVE B EEN INEFFECTIVE
2.54 Despite political commitment at the highest levels of government and the
vast resources Colombia has invested in aerial fumigations over the past decade,
it is clear that they have been ineffective as a means of stemming the cultivation
of coca. As noted earlier, the original goal of Colombia’s eradication program
83
Jim Oldham & Rachel Massey, Health and EnvironmentalEffects of Herbicide Spray
Campaigns in Colombia, The Institute for Science & Interdisciplinary Studies (18 Mar. 2002), p.
2. EM, Vol. IV, Annex 164.
51was to reduce the amount of coca cultivated in the country by 50% in six years
(by 2006) 84. According to UNODC statistics, just over 100,000 hectares of coca
were cultivated in 1998, the year before intensive aerial sprayings began 85. In
2007 (the last year for which UNODC information is available), the figure was
86
virtually identical: 99,000 hectares . This latest figure may actually be
understated; according to statistics from the United States Department of State,
the number of hectares of coca actually increased since wide-scale sprayings
were first implemented from 136,200 hectares in 2000 to 157,200 hectares in
87
2006, an increase of some 15 percent .
2.55 The increase occurred even as the amount of land that was subjected to
aerial spraying increased dramatically. In 1998, before massive aerial sprayings
began, Colombia reportedly fumigated some 66,000 hectares of coca in just six of
its 32 provinces 88. In 2007, it sprayed 153,000 hectares (1,530 km 2) in 14
different provinces 89. Thus, over a ten-year period, Colombia increased aerial
sprayings by 100,000 hectares/year, without reducing coca cultivation. To the
contrary, according to the United States, the area dedicated to coca cultivation
84United States Government Accountability Office, Plan Colombia: Drug Reduction Goals Were
Not Fully Met, op. cit. pp. 1, 4. EM, Vol. IV, Annex 242.
85UNODC Report on the Andean Region 2008, op. cit., p. 13. EM, Vol. II, Annex 25.
86
Ibid.
87United States Department of State, International Narcotics Control Strategy Report (2008), p.
129. EM, Vol. IV, Annex 241.
88UNODC Report on the Andean Region 2008, op. cit., p. 102. EM, Vol. II, Annex 25.
89 Ibid. According to the U.S. statistics, Colombia sprayed 153,133 hectares in 2007. United
States Department of State, International Narcotics Control Strategy Report (2008), p. 129. EM,
Vol. IV, Annex 241.
52increased by 15% despite the more than 250% increase in areas subjected to
aerial fumigation 9.
2.56 Colombia persists in its adherence to this failed program and claims a
continued right to implement it. It persists in spite of the objections of organs of
its own government, and in spite of the complaints of many of its own citizens in
the affected areas who have documented the harms to human health, to animals
and to licit crops necessary to the subsistence and survival of indigenous and
other local communities. And, as detailed in the following chapter, Colombia has
persisted in the face of long-standing and repeated objections by the Government
of Ecuador, based on harms caused to humans, animals, and plants on Ecuador’s
side of the border, all in violation of the international obligations that Colombia
owes to Ecuador.
90
Ibid.
53 CHAPTER III.
THE DIPLOMATIC HISTORY OF THE DISPUTE3.1 This Chapter presents a chronological account of the diplomatic
exchanges between Ecuador and Colombia concerning Colombia’s aerial
fumigation programme in the border area. From the moment Ecuador became
aware of Colombia’s aerial spraying of herbicides at, along and across its
northern border zone in 2000, and for seven years thereafter, Ecuador repeatedly
voiced its concerns about the impacts of these activities on Ecuador. It was
equally persistent in asking for detailed information about Colombia’s fumigation
programme, including (but not limited to) the dates and locations of spray events;
the chemical composition of the herbicidal mix Colombia employs; an
environmental impact assessment (“EIA”); and other scientific studies concerning
the potential impacts of the spray on people, animals and non-target plant species.
3.2 Despite Ecuador’s frequent requests, Colombia not only refused to end its
aerial fumigations in the border area, it failed to provide the essential information
Ecuador sought. Not once has Ecuador received advance notice of aerial
sprayings along its borders. Nor has it ever received a copy of Colombia’s EIA,
assuming one exists at all. To this day, nearly nine years after aerial fumigations
began, Ecuador still does not even know the chemical composition of the
herbicide mixtures Colombia has been spraying along its border.
3.3 During the seven years of diplomatic exchange, Ecuador and Colombia
pursued a variety of mechanisms in an attempt to advance their dialogue. They
exchanged diplomatic notes; they held face-to-face talks, including at the
Presidential level; they convened two special joint scientific and technical
commissions for purposes of examining the impacts of the aerial fumigations in
Ecuador; and they sought the assistance of multi-lateral institutions, including the
Organization of American States (“OAS”) and the United Nations (“UN”). At
various moments, it has appeared that the Parties were making some progress. In
57August 2004, for example, Colombia at last agreed that it would inform Ecuador
of fumigations along the border in advance so that Ecuador could take appropriate
steps to mitigate and measure their effects. This promise was quickly broken
when, just three months later, Colombia conducted sprayings in the area without
appropriate notice to Ecuador. Nor did it notify Ecuador in advance of any
subsequent fumigations. In December 2005, Colombia agreed to suspend aerial
sprayings within 10 kilometres of the international border. Yet, just a year later,
it resumed the practice claiming it simply “had no option but to resume the
spraying it had traditionally carried out on the Colombian side of the border” 91.
3.4 In the end, none of the Parties’ efforts resolved the persistent differences
between them. Ultimately, following the collapse of the second (and final)
meeting of the second joint scientific commission in 2007, Ecuador was
compelled to recognize the obvious: the diplomatic process had been exhausted.
Accordingly, it sent Colombia a diplomatic note informing it that: “Ecuador
believes that the dialogue process it has maintained with Colombia over seven
years with the goal of finding a final solution to the issue of sprayings has been
exhausted without results” 9. Ecuador’s Application instituting proceedings in
this Court followed on 31 March 2008.
* * *
3.5 This Chapter presents the diplomatic history in four sections. Section I
relates to the period between July 2000 and the end of 2002, and describes
Ecuador’s early protests to Colombia and its repeated requests for information, all
91See infra para. 3.64.
92
See infra para. 3.78.
58of which went unsatisfied. Section II discusses the period between early 2003
and August 2004 during which the Parties convened the first joint scientific and
technical commission without meaningful result. Section III addresses the
period from November 2004 to early January 2007, during which Ecuador’s
mounting frustration with Colombia’s actions, including Colombia’s breach of its
December 2005 commitment to stop fumigations on the border, led Ecuador to
submit complaints both to the United Nations and to the Permanent Council of
the Organization of American States. Finally, Section IV covers the period
between the middle of January 2007 and March 2008, and discusses the failure of
the second joint scientific commission, as a consequence of which Ecuador filed
its Application on 31 March 2008.
Section I. Ecuador’s Early Protests and Requests
for Information: 2000-2002
3.6 As discussed in Chapter II, Colombia intensified its programme of aerial
fumigations in 1999; sprayings in the vicinity of the Colombia-Ecuador border
followed. Ecuador expressed its concerns promptly. On 24 July 2000, Ecuador’s
Ministry of Foreign Affairs sent a diplomatic note to the Embassy of Colombia in
Quito expressing:
“the concern of the Government of Ecuador regarding the
upcoming fumigations of coca crops in Colombian territory with
toxic and/or biological substances that may cause serious impacts
on human health and the environment, with possible repercussions
for Ecuador, on the fragile ecosystems of the Amazon region and
on the health and livelihoods of local populations” 93.
93Diplomatic Note 12437-47 SP/DGA/DTANC, se nt from the Ministry of Foreign Affairs of
Ecuador to the Embassy of Colombia in Quito (24 July 2000). EM, Vol. II, Annex 36.
593.7 In the same note, Ecuador requested information about the fumigations
and their potential impacts. In particular, Ecuador asked Colombia if it had
conducted environmental impact studies before beginning the fumigations and
what measures it had taken to mitigate the sprayings’ effects:
“THE MINISTRY OF FOREIGN AFFAIRS considers it
important and would appreciate receiving information regarding
the environmental repercussions of the possible use of toxic and/or
biological substances. Of special importance is learning whether
environmental impact studies and/or mitigation measures have
been planned and carried out before the realization of the
aforementioned spraying activities in the areas that may possibly
be affected.”94
No environmental impact assessment was forthcoming, however. Indeed, to this
day, Ecuador has not received a proper environmental impact assessment from
Colombia.
3.8 In December 2000, with fumigations along the border between
Colombia’s Putumayo and Ecuador’s Sucumbíos Provinces on-going, a bilateral
meeting to discuss the implementation of Plan Colombia, the new Colombian
policy initiative pursuant to which the aerial sprayings were being conducted, was
proposed. By note dated 19 December 2000, Colombia rejected the idea
summarily, calling it both “inappropriate” (“ improcedente”) and “inconvenient”
(“inconveniente”) 9.
3.9 Two months later, on 16 February 2001, with fumigations continuing
along the frontier, Ecuador sent another diplomatic note again asking for
94Ibid.
95
Diplomatic Note E-1766, sent from the Embassy of Colombia in Quito to the Ministry of
Foreign Affairs of Ecuador (19 Dec. 2000). EM, Vol. II, Annex 37.
60information. This time, Ecuador asked Colombia to advise it of the composition
of the chemicals used and the areas where the sprayings were scheduled to take
place. In particular, Ecuador sought
“within the shortest possible time, all the information available
regarding the type of substances that are being used in the
fumigations, as well as on the specific areas where these
operations are being condu96ed and where they are expected to be
conducted in the future” .
3.10 As with Ecuador’s July 2000 information request, Colombia again chose
not to provide the requested information either about the substances employed or
the specific areas in which fumigations were being conducted. By note dated 12
March 2001 from the Colombian Embassy in Quito to Ecuador’s then-Foreign
Minister Heinz Moeller, Colombia specifically took note of the fact that “[i]n
recent weeks, the Government of Ecuador has repeatedly voiced its concern with
regards to the potential adverse effects arising from the execution of Plan
Colombia” 97. Yet, in response to those concerns, Colombia stated only that:
“It is worth reiterating that Plan Colombia constitutes the central
strategy adopted by the Colombian Government to address the
serious problems that affect our society, aiming, above all, at the
progressive eradication of illicit crops and combating related
activities ….
Furthermore, Plan Colombia is precisely the most effective
method of protecting the fraternal country of Ecuador from the
perverse effects of drug trafficking and armed conflict, as it is
96
Diplomatic Note 21085 SSN/DGST, sent from the Ministry of Foreign Affairs of Ecuador to
the Embassy of Colombia in Quito (16 Feb. 2001). EM, Vol. II, Annex 38.
97Diplomatic Note E-297, sent from the Embassy of Colombia in Quito to the Ministry of Foreign
Affairs of Ecuador (12 Mar. 2001). EM, Vol. II, Annex 39.
61 aimed at preventing them from continuing to strengthen and to
spread into Ecuador.” 98
3.11 Ecuador responded promptly by note dated 27 March 2001 in which it
made clear that it had no interest in interfering in Colombia’s internal affairs, only
in protecting its own safety and that of its people:
“It is not up to the Government of Ecuador, respectful of the
principle of non-intervention and non-interference in the affairs of
other States, to become involved in the internal affairs of
Colombia, but it does have the right to adopt the measures it
deems appropriate to preserve its security and that of its
citizens.”99
3.12 Notwithstanding Colombia’s non-responsiveness to its detailed
information requests, Ecuador continued to press its concerns about the aerial
fumigations. In a diplomatic note dated 2 July 2001, Ecuador stated:
“The Government of Ecuador has followed closely the actions that
the Illustrious Government of Colombia is conducting in the
framework of the application of the so-called ‘Plan Colombia’,
particularly those that are involved in the spraying of illicit crops
on Colombian territory neighbouring Ecuador.
My country’s attention is warranted, among other reasons, by the
possibility that atmospheric phenomena or other causes may
eventually cause the sprayings in the south of Colombia to
produce harmful effects on human health, on crops or on the
environment of the Ecuadorian territory bordering that country.” 100
98
Ibid.
99
Diplomatic Note 31036/2001 SG/SSN, sent from the Ministry of Foreign Affairs of Ecuador to
the Embassy of Colombia in Quito (27 Mar. 2001). EM, Vol. II, Annex 40.
100Diplomatic Note 55416/2001- GM/SOI/SSN, sent from the Ministry of Foreign Affairs of
Ecuador to the Ministry of Foreign Affairs of Colombia, (2 July 2001). EM, Vol. II, Annex 41.
623.13 In the same note, Ecuador expressed its concerns about the reported
contents of Colombia’s spray mixture and the absence of a risk assessment:
“For this reason, my Government is concerned by information
regarding the use in Colombia of the chemical formulation
Roundup Ultra, whose active ingredient is glyphosate and contains
a substance called POEA, which is much more toxic than
glyphosate, combined with a product called Cosmoflux 411F,
which substantially increases the product’s action.
According to data available to Ecuador, there are not sufficient
studies regarding the safety of using inert substances such as
Dioxane and other ingredients that are part of the formula
currently used to spray coca crops in southern Colombia.
Furthermore, the fact that the doses applied are four times higher
than those recommended must also be taken into account, as this
increases the risk of damaging the vegetation as a result of the
drift.
Renowned institutions such as the WWF (World Wildlife Fund)
have warned of the risks of using Roundup, and have
recommended making assessments on the pot101ial short-term
environmental impacts of this product.”
3.14 In light of the risks mentioned, Ecuador’s note concluded with two
requests:
“In view of the foregoing, and without prejudice to the precautions
surely considered in the planning of the sprayings by Colombian
authorities, my Government deems it necessary to ask the
Illustrious Government of Colombia that applications of the
chemical formulations in its territory are made at least 10
kilometres away from the border with Ecuador, in order to prevent
the drift caused by winds from reaching Ecuadorian territory and
producing harmful effects on the people and the vegetation.
My Government also believes that, among the alternatives
contemplated by Colombia to put an end to illicit crops in its
territory, the most adequate and effective one is concerted manual
101Ibid.
63 eradication, and I very respectfully urge the Illustrious
Government of Colombia to intensify it.” 102
3.15 Colombia responded by note dated 14 July 2001 in which it stated that
“[T]he Government of Colombia is aware of the effects that the inappropriate use
103
of herbicides can have.” It insisted, however, that:
“In light of [Ecuador’s] concern, I wish to inform Your Excellency
that the Government of Colombia has assumed, in a responsible
way, the commitment to eradicate illicit coca crops, and to do so, it
is conducting a program of spraying of illicit industrial crops in a
technical, programmed and controlled way. This eradication
program is carried out in accordance with parameters that
minimize any risk that may affect the environment and human and
animal health.” 104
3.16 The Colombian response purported to assure Ecuador that Colombia “uses
105
products which have been demonstrated to have no harmful effects…” .
Colombia did not, however, provide any support for its claim. Nor did Colombia
identify the chemicals used in the spray, the formula of the chemical mixture, the
quantity of spray discharged on the target areas, or other parameters affecting the
spray application or its spread to Ecuador.
3.17 Undeterred by Ecuador’s concerns and repeated requests for information,
Colombia carried out a new round of fumigations along the border in October and
November of 2001. Ecuador was given no advanced notice.
102Ibid.
103
Diplomatic Note DM/AL No. 25009, sent from the Minister of Foreign Affairs of Colombia to
the Minister of Foreign Affairs of Ecuador (14 July 2001). EM, Vol. II, Annex 42.
104
Ibid.
105Ibid.
643.18 In February 2002, at the invitation of the Colombian government, several
Ecuadorian officials, including the Ambassador of Ecuador in Bogotá and
representatives of Ecuadorian Ministry of the Environment, attended a workshop
in Bogotá ostensibly designed to allay Ecuador’s concerns about Colombia’s
aerial sprayings along the border. According to the joint report prepared
following the meetings, however, the workshop did not achieve its intended goal.
The executive summary of the report states: “We can categorically conclude that
it cannot be assured that the aerial sprayings with chemical formulations
106
employed do not carry risks for the ecosystem…” .
3.19 In contradiction of Colombia’s 14 July 2001 diplomatic note in which it
had assured Ecuador that it uses only products that “have been demonstrated to
have no harmful effects”, Colombian officials attending the workshop indicated
that:
“are conscious of and agree with Ecuador in that objective and
impartial scientific research to study the short- and long-term
impacts to the environment and to health, as well as the chemical
formulations used to eliminate illicit crops, such as those
chemicals107ed in the crop and processing the same, are
lacking” .
3.20 In light of these uncertainties, and consistent with Ecuador’s 2 July 2001
request, the Colombian participants in the seminar assured their Ecuadorian
counterparts that:
106Republic of Ecuador, Ministry of Environment, Joint Report from the Workshop: Eradication
of Illicit Crops, Bogotá, Colombia (13-15 Feb. 2002). EM, Vol. IV, Annex 163.
107
Ibid.
65 “they are leaving a safety margin of 8 to 10 kilometres from the
San Miguel River, the international boundary, within Colombian
territory…” 108.
3.21 This assurance was, however, quickly broken. Between July and
December 2002, Colombia carried out additional spraying in close proximity to
109
the international border . Once again, Colombia provided Ecuador no prior
notice and did not invite consultations.
3.22 As before, Ecuador continued to voice its concerns to Colombia. By note
dated 18 October 2002, the Ecuadorian Foreign Ministry sent the Colombian
Embassy in Quito a copy of a communication from the prefect of Sucumbíos and
the Agricultural Centre of Nueva Loja (also known as “Lago Agrio”)
complaining of the negative effects of the fumigations on crops in the border
area 11. Five days later, the Ecuadorian Foreign Ministry sent Colombia:
“a summary of the report sent by the Governor of the Province of
Sucumbíos related to accusations and complaints made by
Ecuadorian peasants who live on the riverbanks of the San Miguel
River as a result of the spraying operations that are being
conducted as part of Plan Colombia. The damages have been
verified by this local authority, who reports that he has been able
to confirm the damages suffered in crops of orito, plantain,
bananas, maize, yucca and other vegetation. He has also found
108Ibid.
109
See Note SARE-142, sent from the National Directorate of Narcotics of the Ministry of
Interior and Justice of Colombia to the President of the Scientific- Technical Commission of
Ecuador (14 Apr. 2004) (hereinafter “Note SARE-142”). EM, Vol. II, Annex 62.
110Diplomatic Note 47839 DGAF, sent from the Ministry of Foreign Affairs of Ecuador to the
Embassy of Colombia in Quito (18 Oct. 2002). EM, Vol. II, Annex 45.
66 dead farm animals and fish in various ponds, products that are
staple foods of this population” 111.
Section II. The First Joint Scientific Commission and Colombia’s
Continued Failure to Provide Information: 2003-2004
3.23 Faced with the growing evidence of harm to humans, animals and plants
in border areas of Ecuador, representatives of the Ecuadorian and Colombian
governments met at Ecuador’s initiative on 26 February 2003 and agreed to create
112
a joint scientific commission to evaluate the effects of the fumigations . The
proposed commission was to be an inter-disciplinary working group comprised of
technical experts from the Parties’ Ministries of Environment, Health, Agriculture
and Foreign Affairs.
3.24 Complaints from the border continued to pour in. In response, on 10
April 2003, Ecuador’s then-Foreign Minister, Dr. Nina Pacari Vega, wrote the
Colombian Ambassador in Quito to encourage Colombia to move promptly to
appoint its members of the commission 11. At the same time, she sent a draft of a
proposed Memorandum of Understanding in which:
“The Parties acknowledge the need to eliminate illicit coca crops
and other plants used in the manufacturing of narcotic substances,
elimination that must be carried out by each one of the Parties
within the limits of their respective territories and based on
procedures compatible with the protection of human health and the
environment.
111Diplomatic Note 48975-2002/DGPB, sent from the Ministry of Foreign Affairs of Ecuador to
the Embassy of Colombia in Quito (23 Oct. 2002). EM, Vol. II, Annex 46.
112
See Diplomatic Note 23205/GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Embassy of Colombia in Quito (10 Apr. 2003). EM, Vol. II, Annex 47.
113Ibid.
67 In the event that one of the Parties is required to conduct aerial
spraying operations aimed at the elimination of illicit crops, these
shall be undertaken at a distance of no less than ten kilometres
from the line marking the border between the two countries. In
order to prevent harm or inconveniences to border towns of the
other Party, the aircrafts shall not spray during aerial
manoeuvrings involving over-flights of the aforementioned buffer
114
safety zone.”
3.25 Colombia did not respond to the proposed Memorandum of
Understanding for more than five months. In the interim, beginning in May
2003, it carried out another round of aerial sprayings along the border between
115
Putumayo Province in Colombia and Sucumbíos Province in Ecuador . As
before, Ecuador received no advanced notice.
3.26 When Colombia finally responded to the proposed Memorandum of
Understanding, its answer was negative. In a 23 September 2003 note from the
Colombian Foreign Ministry to the Ecuadorian Ambassador in Bogotá, Colombia
rejected the idea of a buffer zone stating: “The establishment of an aspersion-free
strip along the common border, as proposed by the Government of Ecuador in the
referenced Memorandum, is unacceptable to the Government of Colombia for
multiple reasons.” 116 Curiously, even as it rejected the idea of a buffer zone,
Colombia expressly acknowledged that it was bound to observe “the
114Ibid.
115
See Note SARE-142, op. cit. EM, Vol. II, Annex 62.
116Diplomatic Note VRE 32759, sent from the Ministry of Foreign Affairs of Colombia to the
Embassy of Ecuador in Bogotá (23 Sep. 2003). EM, Vol. II, Annex 48.
68precautionary principle enshrined in the 1992 Rio Declaration on the
117
Environment and Development” .
3.27 The same day that Colombia rejected Ecuador’s proposed Memorandum
of Understanding, it sent another note identifying its participants in the joint
scientific and technical commission first discussed seven months earlier.
Although the commission had originally been conceived as an inter-agency
undertaking of top scientists, the Colombian delegation was dominated by
members of its law enforcement community. Of the 13 members of Colombia’s
team, nine came either from the national police or the National Anti-Narcotics
Agency (“DNE”, per the Spanish initials) 118.
3.28 The special joint scientific and technical commission met for the first time
on 14 October 2003 in Bogotá. At that meeting, the Ecuadorian delegation
formally requested information concerning existing environmental impact studies
pertaining to the fumigations, the locations of aerial spray events,
epidemiological studies, and any other information relevant to the impacts of the
spray on human and animal health, and on the environment. The Colombian
delegation agreed to provide the information requested 11.
3.29 On 23 October 2003, Ecuador’s then-Minister of Foreign Affairs, Mr.
Patricio Zuquilanda Duque, reiterated these requests for information:
117
Ibid.
118
Diplomatic Note, DBR/CAL 37677 sent from the Ministry of Foreign Affairs of Colombia to
the Embassy of Ecuador in Bogotá (23 Sep. 2003). EM, Vol. II, Annex 49.
119See Diplomatic Note 68934/2003-GM, sent from the Ministry of Foreign Affairs of Ecuador to
the Ministry of Foreign Affairs of Colombia (23 Oct. 2003). EM, Vol. II, Annex 52.
69 “… I have the honor to request that, in order to further the
proposed process of scientific and technical research, you instruct
that the information requested by the Ecuadorian Scientific-
Technical Commission concerning fumigation zones, existing
environmental impact studies, epidemiological studies, reports
subsequent to sprayings, and all scientific records available and
deemed appropriate be sent to the Foreign Ministry of Ecuador, to
allow the CCTE [Ecuadorian Scientific-Technical Commission] to
conduct an analysis as thorough as possible” 120.
3.30 Very little of the information Ecuador sought was provided by Colombia.
On 12 November 2003, the Colombian Foreign Minister sent Ecuador four
documents of limited scope, none of which was an environmental impact
assessment 121.
3.31 Noting the continued failure to provide an environmental impact
assessment, Ecuadorian Foreign Minister Zuquilanda wrote to his Colombian
counterpart, Ms. Carolina Barco, on 21 November 2003 reiterating Ecuador’s
request for an EIA 122. By return note dated 15 December 2003, Foreign Minister
Barco replied that no such document existed. She stated that:
“after making the relevant consultations, none of the competent
entities reported having in their possession the document entitled
120
Ibid.
121Diplomatic Note VRE/DBR 40153, sent from the Ministry of Foreign Affairs of Colombia to
the Ministry of Foreign Affairs of Ecuador (12 Nov. 2003). EM, Vol. II, Annex 50. The
documents Colombia sent were: (a) “Toxicity studies in laboratory animals”; (b) “Final Report: A
study of reports on health damage related to aerial eradication in Colombia”; (c) “Retrospective
study on potential effects on human health due to exposure to glyphosate in aerial spraying”; and
(d) “Executive Summary of Analysis: Impacts in Ecuador of sprayings in Putumayo under Plan
Colombia.”
122Diplomatic Note 75204/2003-GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Ministry of Foreign Affairs of Colombia (21 Nov. 2003). EM, Vol. II, Annex 51.
70 ‘Environmental Impact Assessment conducted prior to sprayings
of Glyphosate’” 123.
3.32 Instead of an EIA, Colombia sent a significantly more limited document
entitled “Determination of Residues of the Herbicide Glyphosate and its
124
Metabolite AMPA in Water” . This cursory document was not a substitute for
the environmental impact statement that Ecuador had long been seeking. It
merely described a methodology for collecting water samples and testing them
for the residues of glyphosate and its metabolites. It did not present any study
results, and did not predict the environmental effects of the spraying programme,
or compare those effects to alternatives to the programme.
3.33 On 14 January 2004, Colombia sent Ecuador an additional document
entitled “Environmental Risk of the Herbicide Glyphosate” obtained from
125
DNE . Even if Colombia considered this report -- included as an annex to this
126
Memorial -- to be an EIA, it is a wholly inadequate assessment of the risks of
the aerial spraying program. Among other major flaws, the report only discusses
glyphosate and does not consider other components of the spray mixture, some of
which are more toxic than glyphosate itself. It also does not take into account the
operational parameters of Colombia’s aerial sprayings or the unique tropical
ecosystems where they are conducted. Additionally, and of crucial significance,
the report does not even consider the potential of the sprayings by Colombia to
cause harm in Ecuador.
123Diplomatic Note DM/DBR 47356, sent from the Ministry of Foreign Affairs of Colombia to
the Ministry of Foreign Affairs of Ecuador (15 Dec. 2003). EM, Vol. II, Annex 53.
124
Ibid.
125Diplomatic Note DBR/CAL 1405, sent from the Ministry of Foreign Affairs of Colombia to
the Embassy of Ecuador in Bogotá (14 Jan. 2004). EM, Vol. II, Annex 54.
126Republic of Colombia, Environmental Risk of the Herbicide Glyphosate (date unknown). EM,
Vol. II, Annex 101.
713.34 The second meeting of the special joint Scientific and Technical
Commission took place on 9 February 2004 in Quito. In response to Ecuador’s
request, the Colombian delegation agreed to provide all available information
about prior fumigations, including mission parameters like flight paths, altitude,
wind and other factors, but it never did so. The Ecuadorian delegation also once
again reiterated its longstanding, unsatisfied request for evidence that a proper
EIA had been carried out. By this point, some four years had passed since aerial
fumigations had begun 127.
3.35 These requests were reiterated the next day in a diplomatic note from
Ecuadorian Foreign Minister Zuquilanda to Colombian Foreign Minister Barco.
The importance Ecuador attached to the environmental impact assessment in
particular was highlighted:
“The CCTE [Ecuadorian Scientific-Technical Commission] again
requested the CCTC’s [the Colombian Scientific-Technical
Commission] report on environmental impact. This report has
been deemed essential since the beginning of t128inquiries, and it
was raised during the [Second] Meeting.”
3.36 Even as the Parties were discussing a joint, bilateral study of the
sprayings, Colombia issued a press release on 13 February 2004 announcing that
it had entered a separate memorandum of understanding with the Inter-American
Drug Abuse Control Commission (“CICAD” per the Spanish initials) of the
Organization of American States to study the effects of the sprayings 12.
127
See Diplomatic Note 4820/2004-GM, sent from the Ministry of Foreign Affairs of Ecuador to
the Ministry of Foreign Affairs of Colombia (10 Feb. 2004). EM, Vol. II, Annex 55.
128
Ibid.
129Ministry of Foreign Affairs of Colombia, Press Release,Memorandum of Understanding is
signed for the study of the effects of the fumigation of illicit crops (13 Feb. 2004). EM, Vol. IV,
Annex 176.
72According to the press release, the memorandum of understanding between
Colombia and CICAD had grown out of a request Colombia had initially
130
submitted to CICAD in 2001 . Neither in 2001 nor early in 2004 was Ecuador
informed about Colombia’s unilateral initiative, much less given an opportunity
to participate in the proposed CICAD study.
3.37 Invoking the precautionary principle, Ecuador proposed on 16 February
2004 that Colombia formally agree to suspend fumigations in the border
region 131. Colombia rejected the proposal. By note dated 23 February 2004 to
Ecuadorian Foreign Minister Zuquilanda, Colombian Foreign Minister Barco
responded:
“In this sense, I would like to point out that, for reasons of the
schedule of sprayings for this year, at present the Anti-Narcotics
Police is not carrying out aerial sprayings in areas near the border
line with Ecuador. However, in case aerial surveillance conducted
over these areas provides information on new crops, the program
of sprayings will continue, in application of the national policy of
eradication of illicit crops and in compliance with the international
commitments to fight the drug problem assumed by Colombia.” 132
3.38 Foreign Minister Zuquilanda replied on 9 March 2004 by reiterating
Ecuador’s request that Colombia take steps to avoid any further aerial spraying
along the border:
“In this sense, the Government of Ecuador kindly requests the
Illustrious Government of Colombia to monitor and reinforce to
the maximum extent its controls over its southern border region
130Ibid.
131
Diplomatic Note 10181/2004-GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Ministry of Foreign Affairs of Colombia (16 Feb. 2004). EM, Vol. II, Annex 56.
132Diplomatic Note DM/DBR 8092 sent from the Ministry of Foreign Affairs of Colombia to the
Ministry of Foreign Affairs of Ecuador (23 Feb. 2004). EM, Vol. II, Annex 57.
73 neighboring Ecuador, as well as to take all steps deemed
appropriate in its territory to prevent new illicit crops and the
resumption of possible aerial sprayings in the aforementioned
133
zone.”
3.39 The following day, 10 March 2004, Ecuador sent Colombia a note again
requesting the information that Colombia had agreed to provide at the second
meeting of the joint Scientific and Technical Commission the previous month. In
particular, Ecuador reminded Colombia of its promise to provide information
concerning (a) the methodologies of the sprayings, (b) the scientific basis for any
investigations conducted by Colombia, (c) information concerning the companies
that had conducted any toxicological studies, and (d) the environmental impact
134
assessment which, it noted, had already been requested on multiple occasions .
Colombia did not provide the promised information.
3.40 Thereafter, the Presidents of Ecuador and Colombia met in Bogotá on 16
and 17 March 2004. At the end of their meetings, the Presidents issued a Joint
Declaration in which, among other things, Colombia reiterated its promise to
provide Ecuador with adequate information:
“The Government of Colombia will give the Government of
Ecuador explanations and scientific support that demonstrate that
the fumigation of il135it crops is not harmful to human beings or to
the environment.”
133
Diplomatic Note 15715/2004-GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Ministry of Foreign Affairs of Colombia (9 Mar. 2004). EM, Vol. II, Annex 58.
134
Diplomatic Note 15839/2004-GM-VM, sent from the Ministry of Foreign Affairs of Ecuador
to the Ministry of Foreign Affairs of Colombia (10 Mar. 2004). EM, Vol. II, Annex 59.
135Presidential Joint Declaration between Ecuador and Colombia, Bogotá (17 March 2004). EM,
Vol. II, Annex 60.
743.41 In light of Colombia’s renewed commitment to deliver to Ecuador the
scientific support and other information on the impacts of the aerial spraying
program on human health and the environment, Ecuadorian Foreign Minister
Zuquilanda sent a note to Colombian Foreign Minister Barco on 31 March 2004
once again requesting the long-promised environmental impact assessment and
other documents. He wrote:
“Furthermore, as offered by President Alvaro Uribe during the
State Visit, and as set forth also in the Joint Declaration, I would
appreciate it if you would arrange for the information and the
studies on the sprayings made in Colombia, particularly the
environmental impact study, to be sent [to Ecuador].” 136
3.42 In response, on 14 April 2004, the Director of Colombia’s DNE sent
Ecuador very minimal information in which, among other things, Colombia
confirmed a series of past spray campaigns that were conducted in the border
137
region during 2002 and 2003 . Although Colombia claimed that it kept records
of flight and spray path data, no such information was -- or ever has been --
shared with Ecuador. Nor did Colombia offer any information about its plans for
future spray events. Once again, no environmental impact assessment was
provided.
3.43 The joint Scientific and Technical Commission met for the third time on
26 May 2004 in Nueva Loja, Sucumbíos, about an hour’s drive from the Ecuador-
Colombia border. Little was accomplished, however, and no joint minutes could
be agreed upon. According to a contemporaneous report by the Ecuadorian
delegation members, they emphasized their dissatisfaction with the information
136Diplomatic Note 20434/2004-GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Ministry of Foreign Affairs of Colombia (31 Mar. 2004). EM, Vol. II, Annex 61.
137
Note SARE-142, op. cit. EM, Vol. II, Annex 62.
75provided by the Colombian delegation 13. For its part, Colombia reiterated the
position that it would continue to utilize aerial fumigations as a tool for
139
eradicating coca crops wherever they might be located .
3.44 At Ecuador’s insistence, the fourth (and, as it turned out, final) meeting of
the joint Scientific and Technical Commission took place on 2 August 2004 in
Quito. At the meeting, Colombia indicated that there would be no change in its
position and that it would continue aerial spraying right up to the border with
Ecuador. In the joint minutes adopted and signed by both sides, however,
Colombia did undertake two commitments regarding the way the spraying would
be conducted. First, Colombia specifically agreed that it
“shall notify, by the fastest means, at the moment that such
sprayings are being conducted in the border area, so that the
Ecuadorian [Scientific and Technical] Commission may take
samples and conduct the respective analyses, in a timely
140
manner” .
In addition,
“The Colombian Delegation, reiterating absolute respect for
Ecuadorian sovereignty, declares that, should sprayings along the
border continue, the technical conditions necessary to prevent the
spray from reaching Ecuadorian territory shall be guaranteed.” 141
Neither commitment satisfied Ecuador’s demand to halt aerial spraying near the
border, or its repeated requests for information and an environmental impact
assessment and other scientific studies on the impacts of the spraying. In any
138Report of the Ecuadorian Delegation to the Third Meeting of the Joint Scientific and Technical
Commission (26 May 2004). EM, Vol. II, Annex 63.
139
Ibid.
140Minutes of the Fourth Meeting of the Joint Scientific and Technical Commission (2 Aug.
2004). EM, Vol. II, Annex 64.
141Ibid.
76event, neither commitment was fulfilled by Colombia: Colombia did not notify
Ecuador in advance of future fumigations, and the chemical spray from the
fumigations continued to reach and impact Ecuadorian territory.
Section III. Colombia’s Adherence to Its Fumigation Programme Over
Ecuador’s Continued Opposition and the Involvement of Multilateral
Organizations: 2004-2007
3.45 On 4 November 2004, Colombia’s Foreign Ministry informed Ecuador
that “the Anti-Narcotics Police has notified us of the re-initiation of aerial
spraying with glyphosate in the border area, which shall last until the end of the
142
month of December” . It was not clear from this communication whether the
aerial sprayings had already recommenced. Colombia’s note also failed to
provide any information about where fumigations were being conducted, or on
what dates, as would have been necessary in order to permit Ecuador to “take
samples and conduct the respective analyses, in a timely manner.” The note
therefore fell short of Colombia’s promise to inform Ecuador “by the fastest
means, at the moment that such sprayings are being conducted in the border
area”.
3.46 Four days later, by note dated 8 November 2004 and marked “urgent”,
Ecuador reminded Colombia that appropriate steps should be taken “in order to
guarantee that the drift generated by the sprayings does not reach Ecuadorian
143
territory” . Colombia chose not to respond. Instead, it continued to carry out
aerial sprayings, including in the border areas, in December 2004 without further
142
Diplomatic Note DPM/CDR 65881, sent from the Ministry of Foreign Affairs of Colombia to
the Embassy of Ecuador in Bogotá (4 Nov. 2004). EM, Vol. II, Annex 65.
143Diplomatic Note 4-2-439/2004, sent from the Embassy of Ecuador in Bogotá to the Ministry of
Foreign Affairs of Colombia (8 Nov. 2004). EM, Vol. II, Annex 66.
77notice or information to Ecuador. Several weeks afterwards, representatives of
Ecuador’s Foreign Ministry visited the communities of El Afilador and Santa
Marianita in northern Sucumbíos in an effort to collect evidence of the sprayings’
impact. They were unable to do so. Four months later, in April 2005, Colombia
conducted yet another round of fumigations in the border region, this time
without notice to Ecuador of any kind.
3.47 By diplomatic note dated 6 May 2005, Colombia sent Ecuador a copy of
the report prepared by CICAD entitled “Environmental and Human Health
Assessment of the Aerial Spray Program for Coca and Poppy Control in
144 145
Colombia” that had been under preparation since 2001 . Colombia claimed
the report proved that its aerial spraying operations did not present significant
risks to human health or the environment, either in Colombia or Ecuador.
Ecuador did not agree. In fact, as will be discussed further in Chapter V, the
report itself acknowledged significant known risks of the fumigations to both
human health and the environment. The Ecuadorian Scientific and Technical
Commission observed that the CICAD report was methodologically flawed; that
its conclusions were based only on bibliographic compilations and inadequate
existing studies rather than field testing; and that it ignored witness testimonies of
actual harms 146. The report’s methodology and conclusions were the subject of
144
Solomon,K.R.etal., Environmental and Human Health Assessment of the Aerial Spray
Program for Coca and Poppy Control in Colombia , A Report Prepared for the Inter-American
Drug Abuse Control Commission (CICAD), Organization of American States (OAS) (31 Mar.
2005), available at
http://www.cicad.oas.org/Desarrollo_Alternativo/ENG/Projects%20By%20Cou…
AS%20Panel%20Report%20Final.pdf (last visited 15 Apr. 2009). EM, Vol. III, Annex 152.
145
Diplomatic Note DAA/CAL 23927, sent from the Ministry of Foreign Affairs of Colombia to
the Ministry of Foreign Affairs of Ecuador (6 May 2005). EM, Vol. II, Annex 67.
146
Ecuadorian Scientific-Technical Commission, Technical Report from the CCTE on the CICAD
Document on the Study of the Effects Produced by Spraying Glyphosate (within the coca crop
78sustained scientific criticisms by other parties as well, notably including the
National University of Colombia 147.
3.48 Nevertheless, Colombia considered the debate closed upon its delivery of
the CICAD report to Ecuador, despite Ecuador’s rejection of it.
3.49 On 25 July 2005, at Ecuador’s initiative, the two States’ then-Ministers of
Foreign Affairs, Ms. Carolina Barco of Colombia and Mr. Antonio Parra Gil of
Ecuador, met in Quito to discuss Colombia’s aerial sprayings. Foreign Minister
Parra reiterated Ecuador’s standing complaints about Colombia’s failure to fulfil
existing agreements on the subject. Once again, however, no meaningful results
were achieved 14.
3.50 In the face of this diplomatic stalemate, in September 2005 Ecuador’s
th
then-President Alfredo Palacio proposed to the 60 meeting of the United Nations
General Assembly the creation of a UN study group to analyze the effects of
eradication program) on the Border Between Ecuador and Colombia (2 June 2005). EM, Vol.
III, Annex 153.
147
National University of Colombia, Institute of Environmental Studies, Observations on the
“Study of the effects of the Program for the Eradication of Unlawful Crops by aerial spraying
with glyphosate herbicide (PECIG) and of unlawful crops on human health and the environment
(10 May 2005), available at
http://www.cicad.oas.org/Desarrollo_Alternativo/ENG/Projects%20By%20Cou…
tional%20University%20Recommendations.doc (last visited 15 Apr. 2009). EM, Vol. III, Annex
152.
See also Inter-American Drug Abuse Control Commission, Some Comments on the Study of the
Impact of Glyphosate used in the Eradication of Illicit Crops in Colombia , available at
http://www.cicad.oas.org/Desarrollo_Alternativo/ENG/Projects%20By%20Cou…
mments%20about%20the%20study.asp (last visited 15 Apr. 2009). .
148 See “Parra Gil Demanded Colombia’s Compliance With Agreements From Barco,” E L
U NIVERSO (Guayaquil, Ecuador, 25 July 2005) . EM, Vol. IV, Annex 177. See also
“Imperturbable, Barco Listened to Parra,” EC OMERCIO (Quito, Ecuador, 26 July 2005). EM,
Vol. IV, Annex 178.
79Colombia’s aerial fumigations on the inhabitants and the environment of the
border region. In his speech to the General Assembly on 18 September 2005,
President Palacio stated:
“[T]he incorporation of biology into the new international order
obliges the United Nations to transfer its focus from man to
biology. The presence of this new factor -- biology -- brings with
it the need to raise the level of ethics and international law to the
highest degree of respect for biodiversity and the preservation of
all forms of life. Ecuador attaches particular importance to this
topic and is therefore concerned at the controversial spraying of
glyphosate as an herbicide to eliminate illegal crops along border
areas between Colombia and Ecuador. Studies on this substance
suffer from technical and methodological shortcomings. Ecuador
therefore calls upon the United Nations system to promote a
comprehensive, reliable and credible study on the actual impact of
this spraying. Ecuador considers that it is essential to apply the
precautionary principle that has been recognized in many
international agreements and other instruments, in particular the
Rio Declaration on Environment and Development.
Consequently, Ecuador has asked its neighbouring Government of
Colombia to suspend aerial-s149ying activities in a 10-kilometre
strip north of our border” .
3.51 President Palacio’s invitation was formalized in a letter from Ecuador’s
Permanent Mission to the UN to the Secretary General the next day 15. The
Secretary General subsequently agreed to send a mission to Ecuador to assess the
viability of the proposed study 15.
149Address of President Alfredo Palacio to the General Assembly of the United Nations, Sixtieth
Session, 11th Plenary Meeting (18 Sep. 2005), U.N. Doc. A/60/PV.11. EM, Vol. II, Annex 68.
150
Diplomatic Note 4-2-108/2005, sent from the Permanent Mission of Ecuador to the U.N. to the
General Secretariat of the U.N. (19 Sep. 2005). EM, Vol. II, Annex 69.
151Note from the Department of Political Affairs of the U.N. to the Permanent Mission of
Ecuador to the U.N. (29 Nov. 2005). EM, Vol. II, Annex 71.
803.52 The following month, on 17 October 2005, Colombia’s President
delivered a speech at a summit of antinarcotics chiefs of Latin American and
Caribbean States, during which he reconfirmed his government’s policy of
continuing aerial fumigations in all areas of the country:
“…What we need to say to the world is: Colombia is free of drugs,
and for this we have to strengthen fumigation and eradication
efforts… How important it is, that we can everyday strengthen,
further and further, the manual eradication program, and continue
152
strengthening the fumigation program!”
3.53 On 7 December 2005, the Foreign Ministers of Ecuador and Colombia
met in Quito to discuss the main items on the bilateral agenda, including the
aerial fumigations. According to the Joint Communiqué issued after the meeting:
“18. The Ecuadorian Foreign Minister reiterated his country’s
request to the Colombian Government that aerial spraying be
suspended along a 10-kilometre band from the common border,
and that manual eradication be used instead.
19. The Colombian Foreign Minister confirmed that, in
response to the issues raised by the Ecuadorian Government, and
having reviewed its aerial spraying schedule, her country has
decided to temporarily suspend spraying in the area of the border
153
with Ecuador, starting in January 2006.”
3.54 Ecuador subsequently learned that the Colombian Foreign Minister’s
pledge to suspend aerial fumigations in January 2006 was empty. Historically,
most of Colombia’s aerial fumigations along the border had taken place during
the final months of one year and the beginning of the next. Thus, by “the month
152Colombian President Alvaro Uribe, Remarks at the Summit of Antinarcotics Chiefs of Latin
America and the Caribbean, Casa de Nariño, Secretaría de Prensa (17 Oct. 2005). EM, Vol. II,
Annex 70.
153Joint Declaration of the Ministers of Foreign Affairs of Ecuador and Colombia (7 Dec. 2005).
EM, Vol. II, Annex 72.
81of January 2006”, the sprayings during the 2005/2006 cycle were largely
completed. No further spraying would have been planned until the end of 2006.
In fact, Colombia resumed aerial spraying in the border zone in December 2006,
exactly on schedule.
3.55 In the Foreign Ministers’ Joint Communiqué of December 2005,
Colombia also agreed to participate in and cooperate with the UN study proposed
by Ecuador and agreed to by the Secretary General:
“20. Bearing in mind that both Governments have not reached
an agreement on the innocuousness of the herbicide glyphosate
and its coadyuvant on health and the environment, the Colombian
Government has duly noted the request made by the Ecuadorian
Government to the United Nations for a prospective study on this
issue and has agreed to participate in the definition of the terms of
reference of the study. Colombia further agreed to review the
results of 154 study and to evaluate the adoption of the relevant
measures.”
3.56 In February 2006, the Secretary General sent a preliminary technical
mission to Ecuador to lay the groundwork for the planned study. Colombia was
given prior notice of the visit so that it could participate as agreed155. Despite its
December 2005 commitment to do so, however, Colombia chose not to
participate.
3.57 The UN mission produced a report entitled “Report on the Preliminary
Technical Mission of the United Nations Proposing that Studies be Conducted on
the Impact of Aerial Sprayings and Complementary Actions on the Northern
154Ibid.
155
Diplomatic Note 2854/06/SSNDF/DGRFC, sent from the Ministry of Foreign Affairs of
Ecuador to the Embassy of Colombia in Quito (20 Jan. 2006). EM, Vol. II, Annex 73.
82Border of Ecuador” 156which Ecuador communicated to Colombia on 2 May
157
2006 . In it, the authors of the report proposed five specific scientific studies to
evaluate the effect of Colombia’s fumigations in Ecuador. They were: (a) an
epidemiology study comparing the health of people within five kilometres of the
border exposed to the spraying with those not exposed; (b) a toxicity study,
looking at the particular spray mix used; (c) an analysis comparing exposed vs.
unexposed water, soil and plants; (d) a study comparing soil pathologies in
sprayed vs. non-sprayed areas; and (e) a study of crop productivity in sprayed vs.
158
non-sprayed areas .
3.58 Colombia expressed strong opposition to all of these studies, and it was
not possible to carry them out.
3.59 In December 2006, Ecuador learned that Colombia had begun spraying in
the border area once again, in apparent violation of its commitments (a) of August
2004 to notify Ecuador in advance of any such sprayings, and (b) of December
159
2005 to suspend further sprayings altogether . Ecuador reacted to the news by
summoning the Colombian Ambassador in Quito to the Foreign Ministry to take
personal delivery of a protest note dated 14 December 2006. In it, Ecuador
stated:
“As that Honorable Diplomatic Mission is aware, since 2001
Ecuador has asked Colombia to abstain from conducting sprayings
156United Nations, Report on the Preliminary Technical Mission of the United Nations
(hereinafter “U.N. Report on Studies to Be Conducted”) (Apr. 2006). EM, Vol. II, Annex 28.
157
Diplomatic Note 17533/GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Ministry of Foreign Affairs of Colombia (2 May 2006). EM, Vol. II, Annex 74.
158U.N. Report on Studies to Be Conducted, op. cit. EM, Vol. II, Annex 28.
159Official email C.E.No. /2006-MECUCOL, sent from the Embassy of Ecuador in Bogotá to the
Ministry of Foreign Affairs of Ecuador (11 Dec. 2006). EM, Vol. II, Annex 75.
83 in the area 10 kilometres from the border between both countries,
with the purpose of preventing damages to human health, to the
environment and to the flora and fauna of the border zone of
Ecuador.
…
The Joint Communiqué signed in Quito on 7 December 2005, in
the framework of the official visit of the Minister of Foreign
Affairs of Colombia to Ecuador, reflects the commitment of that
country to suspend temporarily aerial sprayings and to allow
manual eradication operations.
…
Based on the foregoing, THE MINISTRY OF FOREIGN
AFFAIRS expresses its strongest protest to the Government of
Colombia for its decision to resume aerial sprayings near the
border area with Ecuador, dismissing all the requests made by
Ecuador to maintain their suspension, at a time when it is essential
to have clear and unequivocal signs of the political will of the
Colombian Government to advance along the path of constructive
dialogue in order to overcome any difficulties that both countries
160
may face in their common border.”
The following day, Ecuador recalled its Ambassador to Colombia for
consultations on this issue.
3.60 Ecuador also submitted a protest note to the Secretary General of the
OAS, Mr. José Miguel Insulza, in which it asked to have Colombia’s actions
161
brought to the attention of the Permanent Council . In addition, Ecuador sent a
note to the UN High Commissioner for Human Rights, Ms. Louise Arbour,
160
Diplomatic Note 52025-GM/SSNDF/DGSN sent from the Ministry of Foreign Affairs of
Ecuador to the Embassy of Colombia in Quito (14 Dec. 2006). EM, Vol. II, Annex 76.
161Diplomatic Note 52284/06/-GM, sent from the Ministry of Foreign Affairs of Ecuador to the
Secretary General of the Organization of American States (15 Dec. 2006). EM, Vol. II, Annex
77.
84inviting Mr. Paul Hunt, UN Special Rapporteur on the Right to Health, to visit
162
Ecuador and verify the effects of Colombia’s aerial fumigations .
3.61 On 28 December 2006, the UN Special Rapporteur on the Rights of
Indigenous People, Mr. Rodolfo Stavenhagen (who had visited Ecuador for
nearly two weeks in April and May 2006), issued a report in which he stated,
among other things:
“Currently, the region’s most serious problem is the aerial
spraying of illicit crops on the Colombian side of the border, using
glysophate [sic] mixed with other products, under the auspices of
Plan Colombia (see the report of the Special Rapporteur on
Colombia, E/CN.4/2005/88/Add.2). Damage caused by this
practice has affected Ecuador, particularly its indigenous
communities, and has given rise to complaints by the Ecuadorian
Government and to bilateral negotiations between the two
countries. International studies indicate that this practice has
negative effects on environmental resources and the health of
people and animals. Skin and other diseases, pollution of rivers
and aquifers, and other damage have been reported. Furthermore,
spraying has been seen as having serious effects on banana
plantations and varieties of tuber crops, the local staple. In
addition, the population often uses untreated water from the river
forming the border between the two countries.” 163
3.62 On 9 January 2007, Ecuador’s then-Foreign Minister, Dr. Francisco
Carrión Mena, appeared before the OAS Permanent Council to present Ecuador’s
views on Colombia’s aerial sprayings along the border. Characterizing
Colombia’s reinitiation of fumigations as “unfriendly”, Foreign Minister Carrión:
162
Ministry of Foreign Affairs of Ecuador, Press Release No. 112Ecuador Presents Protest
Note to Colombia over the Resumption of Fumigations (15 Dec. 2006). EM, Vol. IV, Annex 179.
163Report of the Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous People, Rodolfo Stavenhagen: Mission to Ecuador (25 April-4 May
2006), U.N. Doc. A/HRC/4/32/Add.2 (28 Dec. 2006). EM, Vol. II, Annex 30.
85 x insisted that Colombia’s sprayings violated the spirit of the December
2005 Joint Communiqué;
x denounced Colombia’s decision not to cooperate with the UN
scientific study mission;
x delivered 34 different scientific studies from around the world
addressing the dangers of glyphosate;
x invited the Inter-American Commission on Human Rights to carry out
a field mission to evaluate the effects of the sprayings on the frontier
region; and
x asked Colombia to agree to the creation of a new bi-national scientific
commission to address the issue, including matters of State
responsibility and indemnification 16.
3.63 Responding to Foreign Minister Carríon’s statements, Colombia’s Vice-
Minister of Foreign Affairs, Mr. Camilo Reyes, stated that the subject of aerial
spraying was not open for discussion:
“This [the decision to reinitiate aerial spraying] is a sovereign
decision of the Government of Colombia, and, therefore, an
internal affair of Colombia, which this Forum is not competent to
discuss.”165
3.64 With respect to his country’s decision to abrogate its prior commitment to
suspend aerial fumigations along the border, the Colombian Vice-Minister
dismissed that undertaking as both unilateral and temporary, and contended that
164Speech of Ecuadorian Minister of Foreign Affairs in the OAS Permanent Council (9 Jan.
2007). EM, Vol. II, Annex 78.
165
Speech of Colombian Vice Minister of Foreign Affairs in the OAS Permanent Council (9 Jan.
2007). EM, Vol. II, Annex 79.
86Colombia simply “had no option but to resume the spraying it had traditionally
carried out on the Colombian side of the border” 166.
Section IV. The Second Joint Scientific Commission and the Collapse of
Negotiations: 2007-2008
3.65 Following the meeting of the OAS Permanent Council, on 10 January
2007, Ecuador and Colombia agreed in principle to the creation of a new
scientific commission, which would establish precise terms of reference for a
study of the health effects of Colombia’s aerial spraying, including the collection
of testimonies from both sides of the border. The agreement was reached by
Ecuador’s then-President-elect, Rafael Correa (who took office five days later)
and Colombia’s President Alvaro Uribe, on the occasion of the inauguration of
Nicaragua’s new President in Managua 167. Later that month, in Río de Janeiro,
the Foreign Ministers of Ecuador and Colombia met to implement the Presidents’
agreement 168.
3.66 The first meeting of the new bi-national scientific commission took place
on 10 April 2007 in Quito. The delegations expressed conflicting views on the
purpose of the commission. Ecuador proposed to focus on issues relating to
human well-being, the multi-dimensional nature of the problem and the principle
of precaution. Colombia disagreed. It stated that the commission’s only purpose
166Ibid.
167“Correa and Uribe reach an agreement”, LC OMERCIO (Quito, Ecuador, 11 Jan. 2007). EM,
Vol. IV, Annex 181.
168
See “Ecuador will remain an associated member State with Mercosur”L C OMERCIO (Quito,
Ecuador, 20 Jan. 2007). EM, Vol. IV, Annex 184; Ministry of Foreign Affairs of Ecuador, Press
Release No. 040, Bilateral Progress in the Meeting Between the Foreign Ministers of Ecuador
and Colombia (19 Jan. 2007). EM, Vol. IV, Annex 183.
87was to examine the technical issues relating to the potential of the spray to drift
off-target from Colombia into Ecuador 16.
3.67 According to a contemporaneous Aide Mémoire prepared after the
meeting by the Ecuadorian delegation:
“Ecuador stated the need, as part of the methodology, to carry out
field visits to San Francisco I and II, Santa Marianita, Puerto
Mestanza and Lago Agrio [all in Sucumbíos, Ecuador], an idea
which was not accepted by Colombia, as they believed that this
would be to accept that glyphosate falls into Ecuadorian territory,
whi170would contradict the official position that they maintained
...” .
3.68 The Ecuadorian delegation requested, for the purpose of determining the
health impacts of the spraying program, that Colombia provide it with the precise
chemical formulation used in the spray mixture, which still had not been
provided. Ecuador also suggested that the commission determine the
implications of the precautionary principle for the spraying program. Colombia
rejected both proposals:
“Two other important issues considered in the meeting were
related to the chemical composition used for the eradication of
illicit crops and the precautionary principle. In the first case,
Colombia expressed that this was a decision of its government that
was not to be discussed at that table, and that it considered it an
intervention into the internal affairs of Colombia; and, regarding
the precautionary principle, they believed that it should first be
proved that glyphosate crosses into Ecuador to be able to enter into
169Minutes of the First Meeting of the Bi-National Scientific-Technical Commission (10 Apr.
2007). EM, Vol. II, Annex 80.
170
Ecuadorian Scientific-Technical Commission, Aide Mémoire on the First Meeting (11 Apr.
2007). EM, Vol. II, Annex 81.
88 another type of consideration and to make a claim for the purposes
of eventual reparations.” 171
3.69 To the surprise of the Ecuadorian delegation, the Colombian delegation
stated that the Colombian Ministry of the Environment had conducted an
environmental impact study. When asked that Ecuador be given a copy, the
Colombian delegation was non-committal; it offered only “to make the necessary
efforts to obtain them from the pertinent institutions and to send them in a timely
fashion, so long as they were not classified” 172. The study was never provided to
Ecuador.
3.70 From 14 to 18 May 2007, the UN Special Rapporteur on the Right to
Health, Mr. Paul Hunt visited the border areas of Ecuador affected by Colombia’s
fumigations pursuant to Ecuador’s December 2006 invitation. In his closing
remarks to the press on 18 May in Quito, the Special Rapporteur stated:
“In my opinion, there is an overwhelming case that the aerial
spraying of glyphosate along the Colombia-Ecuador border should
not re-commence. …
There is credible, reliable evidence that the aerial spraying of
glyphosate along the Colombia-Ecuador border damages the
physical health of people living in Ecuador. …
This evidence is sufficient to trigger the precautionary principle.
Accordingly, the spraying shou173cease until it is clear that it does
not damage human health.”
171Ibid.
172
Ibid.
173U.N. Press Release, “U.N. Special Rapporteur on the Right to the Highest Attainable Standard
of Health, Paul Hunt, Ends Visit to Ecuador” (18 May 2007). EM, Vol. IV, Annex 185.
893.71 On 28 May 2007 the Foreign Ministers of Ecuador and Colombia met in
Quito to discuss bilateral matters, including the fumigations. Ecuador expressed
the view that, in the absence of reliable scientific studies on the impacts of the
aerial spraying program on human health and the environment (which Colombia
still had not provided), the precautionary principle mandated that the spraying be
suspended in the border area. Colombia’s Foreign Minister Fernando Araújo,
responded with the statement that:
“Colombia believes the aerial spraying does not reach Ecuador,
and that in any case the effects are not grave. All of this was
framed in an emphatic declaration in which he stated that there is
not room for to174uch caution before the ‘Demon of Drug
Trafficking.’”
3.72 Colombia’s Foreign Minister concluded by communicating his
government’s position that it would not suspend aerial spraying operations in the
border area:
“Colombia was not in the position to make a commitment
regarding the fumigation question, nor could it predict what 175
decisions would be made in the future regarding this issue.”
3.73 The second -- and last -- meeting of the bi-national scientific commission
was convened on 9 July 2007 in Bogotá. According to an Ecuadorian Aide
Mémoire prepared immediately after the meeting, the Colombian delegation took
the position that the aerial spray did not cross over into Ecuador and could not be
the cause of any harmful transboundary effects:
“[F]or the Government of Colombia, aerial sprayings with a
mixture of Glyphosate, CosmoFlux and water for the eradication
174Minutes of Ecuador’s and Colombia’s Foreign Ministers Meeting (28 May 2007). EM, Vol. II,
Annex 82.
175
Ibid.
90 of illicit coca crops do not enter Ecuadorian territory, and
therefore, do not produce harmful effects, either to communities or
to the natural environment of Ecuador. Accordingly, they cannot
be the sour176or cause of the eventual harmful effects alleged by
Ecuador” .
The Colombian delegation also declared that “they lacked the competence to
recommend to their government that the fumigations be suspended, given that
they considered this issue to be a political one, and for that reason to be outside of
177
their scientific-technical character” .
3.74 The Ecuadorian delegation noted that the purpose of the commission was
to study and evaluate the very questions which their Colombian counterparts,
without benefit of the contemplated study and evaluation, had just purported to
answer; namely, whether the spray reached Ecuadorian territory, and if so,
whether it caused human or environmental harm. The Ecuadorian delegation set
forth its position as follows:
x glyphosate is not innocuous either to human health or to the
environment;
x the problem is not limited just to narrow technical questions of drift;
x given the state of scientific uncertainty, the precautionary principle
should be applied; and
x during the pendency of the scientific dialogue, the fumigations should
be susp178ed in areas of Colombia located within 10 kilometres of the
border .
176Ecuadorian Scientific-Technical Commission, Aide Mémoire on the Second Meeting (9 July
2007). EM, Vol. II, Annex 84.
177
Ecuadorian Scientific-Technical Commission, Report on Second Meeting (9 July 2007), p. 1.
EM, Vol. II, Annex 83.
178Ibid., p. 2.
91The meeting ended without agreement. Joint minutes were not agreed, and no
further meetings were scheduled or held.
3.75 Following the failure of this meeting to reconcile the Parties’ positions,
which remained fundamentally unchanged after nearly seven years of dialogue,
Ecuador’s President Correa stated during a State visit to Spain on 11 July 2007
that Ecuador was considering instituting proceedings against Colombia in this
Court 179.
3.76 Colombia reacted strongly to the mention of litigation, calling the idea of
proceedings before the Court “absurd” 180. In response, Ecuador’s Foreign
Ministry issued a press release, dated 12 July 2007 in which it ratified
“the national position that there exist objective facts and scientific
proof confirming the damage caused by said aerial sprayings, to
the health, crops, and environment of the border populations, as
has been corroborated by studies, international expert missions,
and Special Rapporteurs from the United Nations. It was made
clear that Ecuador has every right to consider the op181ng of a new
international case to deal with this controversy” .
3.77 In an effort to stave off the litigation signalled by Ecuador’s President and
Foreign Ministry, Colombia issued a statement that the second meeting of the bi-
national scientific commission had achieved progress by identifying the need to
conduct additional field work 182, notwithstanding the fact that no agreements
179
“For Colombia, the Ecuadorian Position on the Lawsuit in The Hague is Absurd”, E L
U NIVERSO (Guayaquil, Ecuador, 11 July 2007). EM, Vol. IV, Annex 182.
180Ibid.
181Ministry of Foreign Affairs of Ecuador, Press Release No. 547, Ecuador Expresses Surprise at
Declarations of High-Ranking Colombian Official (12 July 2007). EM, Vol. IV, Annex 186.
182Diplomatic Note DM/VRE 35868, sent from the Ministry of Foreign Affairs of Colombia to
the Ministry of Foreign Affairs of Ecuador (18 July 2007). EM, Vol. II, Annex 85.
92were reached, even on the minutes of the meeting, and no further meetings of the
Commission were scheduled.
3.78 On 27 July 2007, Ecuador sent Colombia a note declaring the diplomatic
process to be exhausted:
“After seven years of permanent and insistent attempts to reach an
understanding that would allow the halting of harmful impacts
resulting from the use of a broad-spectrum herbicide package that
contains glyphosate, unfortunately, all these actions have failed to
reach the expected results.
I have outlined below the main efforts deployed by Ecuador to
reach an understanding on this matter:
x In July 2001, the Ministry of Foreign Affairs requested that
Colombia refrain from making aerial sprayings in a 10-km
strip from the borderline, in application of the precautionary
principle.
x By Note No. VRE/32759 dated 23 September 2003, the
Foreign Ministry of Colombia offered to provide all the
available information on the aerial sprayings conducted on the
border with Ecuador, an offer that was not fulfilled.
x On 3 August 2004, Ecuador and Colombia signed the Minutes
of the IV[th] Meeting of their Scientific and Technical
Commissions, in which Colombia agreed to notify Ecuador,
through the most expeditious channel, the moment when
sprayings would be made, in order to allow the Ecuadorian
immediate response team to take samples and make the
relevant technical and scientific analysis in an appropriate way.
Colombia also failed to fulfill these commitments.
x On 7 December 2005, the Ministers of Foreign Affairs in
office at that time signed a joint statement whereby Colombia
committed to suspend sprayings, a commitment that was
breached soon thereafter. Since then, an indefinite number of
spraying flights have been conducted, increasing the negative
effects of this practice.
93 Unfortunately, the [Second] meeting of the Scientific
Commissions, held in Bogota on 9 July, 2007 failed to produce
any results or understandings, and this is overwhelming evidence
that the path of dialogue has been exhausted.
In view of the above, Ecuador believes that the dialogue process it
has maintained with Colombia over seven years with the goal of
finding a final solution to the issue of sprayings has been
exhausted without results.” 183
3.79 Soon thereafter, Ecuador began preparing the case it later filed in this
Court. In early 2008, aware that this lawsuit was imminent, Colombia’s then-
Foreign Minister, Mr. Fernando Araújo Perdomo, asked Ecuador’s then-Foreign
Minister, Ms. Maria Isabel Salvador, what could be done to avoid litigation.
Ecuador’s Foreign Minister replied that Ecuador required a binding, written
agreement that Colombia would refrain from further aerial spraying within 10
kilometres of the common border, and that it would pay compensation to Ecuador
for harms caused to Ecuadorian territory and nationals as a result of past
fumigations. The Colombian Foreign Minister rejected both requests. On 25
February 2008, he offered only that, with respect to the issue of compensation,
Colombia would: “[attend] to the complaints of Ecuadorian citizens, with the
purpose of paying indemnification for real and ascertainable damages, and
through the most expedient mechanism possible, for what the corresponding legal
analyses are being done, taking into account what was noted on said occasion” 184.
The Colombian Foreign Minister made no commitment to stop or suspend aerial
spraying in the border region. He wrote only that Colombia would give “special
183
Diplomatic Note 35224/GM/2007, sent from the Ministry of Foreign Affairs of Ecuador to the
Ministry of Foreign Affairs of Colombia (27 July 2007). EM, Vol. II, Annex 86.
184Diplomatic Note DM/VRE/DSF 7649, sent from the Minister of Foreign Affairs of Colombia
to the Minister of Foreign Affairs of Ecuador (25 Feb. 2008). EM, Vol. II, Annex 87.
94emphasis” to manual eradication of coca plants in the border area, without
committing to halt, alter or reduce aerial spraying:
“the Colombian Government, in consideration of its promise to
combat the world drug problem, as well as the threat that this
problem represents to our national security, shall continue and
strengthen actions directed at the elimination of illicit crops
present in its territory, placing special emphasis on the manual 185
eradication program in the area close to our common border” .
3.80 Ecuador pointed out the inadequacy of Colombia’s position in a
diplomatic note of 24 March 2008:
“The note [from Colombia of 25 February] does not accept the
demands of the Government of Ecuador that the Government of
Colombia sign a formal agreement and make an obligatory
commitment to definitively and permanently cease aerial spraying
within 10 kilometres from the border between Ecuador and
Colombia. Nor does the note accept in satisfactory terms the
demand that the Government of Ecuador be indemnified by the
Government of Colombia. …
The Government of Ecuador considers the position of the
Government of Colombia as reflected in the aforementioned note
to be fundamentally the same as that which the Government has
always maintained, and not reflective of any substantial change.
With this background, the Government of Ecuador reiterates what
it expressed in note No. 35224/GM/2007 dated 27 July 2007, in
the sense that it considers the diplomatic route in relation to this
issue to be finished and without any possibility of success, and
shall heretofore take steps through other peaceful resolution
mechanisms established by international law” 186.
185Ibid.
186
Diplomatic Note 14087/GM/GVMRE/SSNRF/2008, sent from the Ministry of Foreign Affairs
of Ecuador to the Embassy of Argentina in Bogota (24 Mar. 2008). EM, Vol. II, Annex 88.
953.81 Ecuador’s Application instituting these proceedings was filed on 31
March 2008.
96CHAPTER IV.
JURISDICTION4.1 The Court’s jurisdiction in relation to Ecuador’s Application is based
upon Article 36(1) of the Court’s Statute, the 1948 American Treaty on Pacific
Settlement, usually referred to as the “Pact of Bogotá”, and the 1988 United
Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (“1988 Narcotics Convention”) 18.
4.2 Article 36(1) of the Court’s Statute provides that:
“The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.”
4.3 In the present case the “treaties and conventions in force” relied upon by
Ecuador are the 1948 Pact of Bogotá and the 1988 Narcotics Convention.
4.4 Ecuador’s actions in referring this dispute to the Court are premised on
the obligation of States to settle their differences through peaceful means, as
reflected in Article 33 of the United Nations Charter, which provides that:
“The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security,
shall, first of all, seek a solution by negotiation, enquiry,
mediation, conciliation, arbitration, judicial settlement, resort to
regional agencies or arrangements, or other peaceful means of
their own choice.” 188
187
American Treaty on Pacific Settlement, “Pact of Bogotá” (hereinafter “Pact of Bogotá”) 30
UNTS 55 (30 Apr. 1948). EM, Vol. II, Annex 1; United Nations Convention Against Illicit
Traffic in Narcotic Drugs and Psychotropic Substances, (hereinafter “1988 Narcotics
Convention”), U.N. Doc. E/CONF.82/15 (20 Dec. 1988), reprinted in 28 I.L.M. 493 (1989). EM,
Vol. II, Annex 3.
188
Charter of the United Nations (1945), Art. 33.
99 Section I. The Pact of Bogotá
4.5 The Pact of Bogotá was adopted on 30 April 1948, by 21 members of the
Organization of American States 189. At the present time fourteen states are
parties to the Pact of Bogotá 190. Colombia and Ecuador signed the Pact on the
day it was adopted. Colombia ratified the Pact on 14 October 1948; Ecuador
ratified the Pact on 3 March 2008 and deposited its instrument of ratification four
191
days later . Colombia has made no declaration or reservation in relation to the
192
Pact . At the time of signature, Ecuador entered a reservation with respect to
193
Article VI of the Pact, which is of no relevance to this case .
4.6 The purpose of the Pact of Bogotá was to put in place a unified system for
the peaceful settlement of disputes 194. The Court has recognised the significance
of this approach, recently noting that:
189
Pact of Bogotá, Signatories and Ratifications, available at
http://www.oas.org/juridico/english/sigs/a-42.html(last visited 27 Mar. 2009). EM, Vol. II,
Annex 2.
190
The current fourteen State parties are: Brazil, Chile, Colombia, Costa Rica, Dominican
Republic, Ecuador, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and Uruguay.
El Salvador was a party but denounced the Pact on 24 Nov. 1973. Pact of Bogotá, Signatories and
Ratifications, op. cit. EM, Vol. II, Annex 2.
191
Ibid.
192Ibid.
193The reservation provides: “The Delegation of Ecuador, upon signing this Pact, makes an
express reservation with regard to Article VI and also every provision that contradicts or is not in
harmony with the principles proclaimed by or the stipulations contained in the Charter of the
United Nations, the Charter of the Organization of American States, or the Constitution of the
Republic of Ecuador.” Ibid.
194
Pact of Bogotá, op. cit., Chap. I. EM, Vol. II, Annex 1. In 1938, the Eighth International
Conference of American States considered that in view of the fact that “legal provisions to
prevent wars in America were dispersed throughout numerous Treaties, Conventions, Pacts and
Declarations, it is necessary to systematize them in a harmonic and well organized collection” and
initiated a process to reconcile these instruments. International Conference of American States,
Perfecting and Coordination of International Peace Instruments (21 Dec. 1938), Art. XV,
100 “The importance attached to the pacific settlement of disputes
within the inter-American system is reflected in Article 2(c) of the
OAS Charter, which declares that one of the essential purposes of
the organization is ‘to ensure the pacific settlement of disputes that
195
may arise among the Member States’” .
4.7 Article XXIII of the original 1948 OAS Charter called for the creation of
a special treaty to establish the procedures for addressing international disputes,
so that “no dispute between American States shall fail of definitive settlement
within a reasonable period of time” 196. The Pact of Bogotá established these
procedures, as reflected in its preamble 197.
4.8 Under Article I of the Pact of Bogotá, the parties reaffirmed their pre-
existing commitments to “refrain from the threat or the use of force, or from any
available at http://biblio2.colmex.mx/coinam/coinam_1_suplemento_1938_1942/base2.htm (last
visited 27 Mar. 2009). EM, Vol. II, Annex 5.
Referring to the Eighth Inter-American Conference, the Inter-American Conference on Problems
of War and Peace, held in Mexico City in 1945, further emphasized the need to “systematize in an
organized and harmonized group the Inter-American instruments for the prevention and pacific
settlement of controversies.” The Mexico City Conference resolved to “[r]eaffirm the principle of
Law that all international controversies should be settled by peaceful means” and to
“[r]ecommend that the Inter-American Juridical Committee immediately prepare a draft of an
‘Inter-American Peace System’ in order to coordinate all continental instruments for the
prevention and peaceful settlement of disputes, in such a manner that the gradual and progressive
application of this system will mandatorily lead to securing the desired goal.” Inter-American
Conference on Problems of War and Peace (21 Feb. - 8 Mar. 1945), Art. XXXIX, available at
http://biblio2.colmex.mx/coinam/coinam_2_suplemento_1945_1954/base2.htm(last visited 27
Mar. 2009). EM, Vol. II, Annex 6.
195
Territorial and Maritime Dispute (Nicaragua v. Colombia), Preliminary Objections ,
Judgment, I.C.J. Reports 2007, para. 54.
196
Charter of the Organization of American States, UNTS I-1609 (1948), entered into force 13
Dec. 1951. EM, Vol. II, Annex 9. Article 23 of the original 1948 OAS Charter has become
Article 27 in the current 1997 OAS Charter, available at
http://www.oas.org/juridico/english/charter.html(last visited 27 Mar. 2009). The 1948 OAS
Charter has been amended by the Protocol of Buenos Aires in 1967, the Protocol of Cartagena de
Indias in 1985, the Protocol of Washington in 1992, and the Protocol of Managua in 1993.
197
Pact of Bogotá, op. cit., Preamble. EM, Vol. II, Annex 1.
101other means of coercion for the settlement of their controversies, and to have
recourse at all times to pacific procedures” 198.
4.9 Article XXXI of the Pact of Bogotá provides for the jurisdiction of the
Court to settle certain international disputes. It provides:
“In conformity with Article 36, paragraph 2, of the Statute of the
International Court of Justice, the High Contracting Parties declare
that they recognize, in relation to any other American State, the
jurisdiction of the Court as compulsory ipso facto, without the
necessity of any special agreement so long as the present Treaty is
in force, in all disputes of a juridical nature that arise among them
concerning:
1. The interpretation of a treaty;
2. Any question of international law;
3. The existence of any fact which, if
established, would constitute the breach of an
international obligation;
4. The nature or extent of the reparation to be
made for the breach of an international
199
obligation.”
4.10 There can be no question but that the case submitted to the Court by
Ecuador falls squarely within the requirements of Article XXXI of the Pact. The
case relates to a longstanding “dispute” concerning the effects of Colombia’s
aerial spraying programme, and it is of a “juridical nature”. The resolution of the
dispute requires the Court to interpret treaties and to address a range of questions
of international law. There can be no doubt that the facts alleged by Ecuador
198Ibid., Art. I.
199
Ibid., Art. XXXI.
102would, once established by the Court, constitute breaches of numerous
international obligations owed by Colombia to Ecuador, and would give rise to
questions regarding the nature and extent of the reparation owed by Colombia.
4.11 Article VI of the Pact provides that the dispute settlement procedures set
out in the Pact “may not be applied to matters already settled by arrangement
between the parties … or which are governed by agreements or treaties in force
on the date of the conclusion of the present Treaty.” 200 The subject matter of this
dispute is the legality of the aerial spraying that has been conducted by Colombia
since 2000. It is plain that Article VI cannot preclude the Court’s exercise of
jurisdiction in this case: the matters raised by Ecuador which establish the subject
matter of the dispute have not been “settled by arrangement between the parties”
and they are not “governed by agreements or treaties in force” in 1948.
4.12 The Court has, by now, a well-established jurisprudence in relation to the
Pact of Bogotá, and a number of cases are pending before the Court in which
Article XXXI of the Pact has been invoked as a basis for jurisdiction. In the
Dispute regarding Navigational and Related Rights , Costa Rica’s Application in
the case it brought against Nicaragua relied inter alia on Article XXXI as a basis
201
for jurisdiction . Nicaragua did not object to the Court’s jurisdiction. For its
part, Colombia will be familiar with this basis for the Court’s jurisdiction, as it is
a party to the most recent case in which the Court recognised its jurisdiction
200Ibid., Art. VI.
201Costa Rica’s Application states: “The Court also has jurisdiction over the present dispute in
accordance with the provisions of Article 36, paragraph 1, of its Statute, by virtue of the operation
of the American Treaty on Paci▯c Settlement of Disputes, Bogotá, 30 Apr. 1948, Article XXXI
(the Pact of Bogotá). The Parties have expressed their commitment to the Pact of Bogotá through
the Pact of Amity, Washington, 21 Feb. 1949, Article III.” Dispute regarding Navigational and
Related Rights (Costa Rica v. Nicaragua) , Application, I.C.J. Reports 2005, para. 3 (footnotes
removed).
103pursuant to Article XXXI of the Pact. In its Judgment of 13 December 2007, in
the case concerning the Territorial and Maritime Dispute , the Court found
unanimously that it had jurisdiction on the basis of Article XXXI of the Pact to
adjudicate upon the dispute concerning sovereignty over certain maritime features
and the dispute concerning the maritime delimitation between Nicaragua and
202
Colombia, rejecting Colombia’s preliminary objections to the contrary . The
Court declined to exercise jurisdiction in relation to just one aspect of the dispute,
namely the question of sovereignty over the islands of San Andrés, Providencia
and Santa Catalina 203. It did so on the grounds that it was “clear on the face of
the text” of Article I of an earlier 1928 Treaty that the matter of sovereignty over
those islands had “been settled by the 1928 Treaty within the meaning of Article
VI of the Pact of Bogotá” 204. No such argument can be raised in the present case.
4.13 There is no other basis upon which Colombia might object to the Court’s
jurisdiction. As described in Chapter III, sustained efforts made by Ecuador over
many years to resolve the dispute by diplomatic means were not successful.
Article II of the Pact of Bogotá encourages parties to resolve controversies “by
direct negotiations through the usual diplomatic channels”, and recognizes that
where these are unsuccessful the parties to the Pact “bind themselves to use the
205
procedures established in [the Pact]” . Moreover, the Pact of Bogotá generally,
and the terms of Article XXXI in particular, impose no temporal limitation on the
Court’s exercise of jurisdiction. For its part, the Court has consistently adopted
the position -- following the approach adopted by its predecessor, the Permanent
202Territorial and Maritime Dispute (Nicaragua v. Colombia), I.C.J. Reports 2007, op. cit., paras.
97, 104, 120.
203Ibid., para. 90.
204
Ibid., para. 88.
205Pact of Bogotá, op. cit., Art. II. EM, Vol. II, Annex 1.
104Court of International Justice -- that acceptance of the jurisdiction of the Court
will have a retroactive effect unless this is specifically excluded by the terms of
the provision granting jurisdiction or a reservation to such general acceptance of
206
jurisdiction . Colombia has made no reservation to limit the scope of Article
XXXI and, unlike Argentina for example, has not expressed any desire to
207
temporally limit the exercise of jurisdiction under Article XXXI .
4.14 It follows from these considerations that the Court has jurisdiction over
the subject matter of the dispute in accordance with Article XXXI of the Pact of
Bogotá.
Section II. The 1988 Narcotics Convention
4.15 The Court also has jurisdiction under the United Nations Convention
Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. Ecuador
signed the treaty on 21 June 1989 and deposited its instrument of ratification on
23 March 1990. Colombia signed the treaty on 20 December 1988, and deposited
206
Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment 1924, PCIJ Series
A, No. 2, p. 35; Anglo-Iranian Oil Co. ( United Kingdom v. Iran ), Preliminary Objections ,
Judgment, I.C.J. Reports 1952, pp. 93, 106; Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ,
Preliminary Objections, Judgment, I.C.J. Reports 1996, para. 34.
207
Where a state has wished to make such a reservation it has done so in express terms. For
example, the reservation entered by Argentina states: “Arbitration and judicial procedure have, as
institutions, the firm adherence of the Argentine Republic, but the Delegation cannot accept the
form in which the procedures for their application have been regulated, since, in its opinion, they
should have been established only for controversies arising in the future and not originating in or
having any relation to causes, situations or facts existing before the signing of this instr.”ent
Pact of Bogotá, Signatories and Ratifications, (emphasis added). EM, Vol. II, Annex 2.
105its instrument of ratification on 10 June 1994. The treaty entered into force on 11
208
November 1990 .
4.16 Article 32 of the 1988 Narcotics Convention provides:
“1. If there should arise between two or more Parties a dispute
relating to the interpretation or application of this Convention, the
Parties shall consult together with a view to the settlement of the
dispute by negotiation, enquiry, mediation, conciliation,
arbitration, recourse to regional bodies, judicial process or other
peaceful means of their own choice.
2. Any such dispute which cannot be settled in the manner
prescribed in paragraph 1 of this article shall be referred, at the
request of any one of the States Parties to the dispute, to the
International Court of Justice for decision.” 209
210
4.17 Ecuador has made no reservations to the 1988 Narcotics Convention .
Colombia has made certain reservations, but they are not relevant to the subject
matter of the present dispute as they relate to Article 9 of the Convention, which
deals with law enforcement actions to suppress the commission of certain
offences and a specific provision of Article 5 regarding proof issues related to the
confiscation of drugs and associated proceeds 211. It is noteworthy, however, that
Colombia made one declaration upon ratification that is not relevant to the issue
of jurisdiction but that is significant in reflecting Colombia’s recognition of the
importance given to the protection of the environment and the rights of
208United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, Status of Treaty Adherence (hereinafter “1998 Narcotics Convention Status of Treaty
Adherence”) (1998). EM, Vol. II, Annex 4.
2091988 Narcotics Convention, op. cit., Art. 32. EM, Vol. II, Annex 3.
210
1998 Narcotics Convention Status of Treaty Adherence, op. cit. EM, Vol. II, Annex 4.
211Ibid.
106indigenous communities in the context of drug control. Specifically, the
declaration stresses that:
“It is the view of Colombia that treatment under the Convention of
the cultivation of the coca leaf as a criminal offence must be
harmonized with a policy of alternative development, taking into
account the rights of the indigenous communities involved and the
protection of the environment. In this connection it is the view of
Colombia that the discriminatory, inequitable and restrictive
treatment accorded its agricultural export products on international
markets does nothing to contribute to the control of illicit crops,
but, rather, is a cause of social and environmental degradation in
the areas affected. Further, Colombia reserves the right to make an
independent evaluation of the ecological impact of drug control
policies, since those that have212negative impact on ecosystems
contravene the Constitution.”
4.18 The 1988 Narcotics Convention has a broad scope, imposing obligations
in relation to the respect for sovereignty and territorial integrity, protection of the
environment and respect for fundamental human rights. Two of the most
important provisions of the 1988 Narcotics Convention are its Articles 2 and 14,
which indicate that the 1988 Narcotics Convention imposes obligations that cover
the entire subject matter of the dispute that is before the Court.
4.19 Article 2 addresses the scope of the Convention. It provides in relevant
part:
“1. The purpose of this Convention is to promote co-operation
among the Parties so that they may address more effectively the
various aspects of illicit traffic in narcotic drugs and psychotropic
substances having an international dimension. In carrying out
their obligations under the Convention, the Parties shall take
necessary measures, including legislative and administrative
212Ibid.
107 measures, in conformity with the fundamental provisions of their
respective domestic legislative systems.
2. The Parties shall carry out their obligations under this
Convention in a manner consistent with the principles of sovereign
equality and territorial integrity of States and that of non-
intervention in the domestic affairs of other States.” 213
4.20 Article 14 deals with measures to eradicate illicit cultivation of narcotic
plants. In relevant part it provides that:
“2. Each Party shall take appropriate measures to prevent illicit
cultivation of and to eradicate plants containing narcotic or
psychotropic substances, such as opium poppy, coca bush and
cannabis plants, cultivated illicitly in its territory. The measures
adopted shall respect fundamental human rights and shall take due
account of traditional licit uses, where there is historic evidence of
214
such use, as well as the protection of the environment.”
4.21 These provisions vest the Court with jurisdiction over the subject matter
of the entire dispute in accordance with Article 32 of the 1988 Narcotics
Convention.
2131988 Narcotics Convention, op. cit., Art. 2 (emphasis added). EM, Vol. II, Annex 3.
214
Ibid., Art. 14 (emphasis added). EM, Vol. II, Annex 3.
108CHAPTER V. THE DANGERS PRESENTED BY COLOMBIA’S AERIAL
SPRAYING OF HERBICIDES5.1 The previous Chapters described the social and geographical context in
which Colombia has conducted aerial spraying of toxic herbicides along and
across the border with Ecuador, the unsuccessful diplomatic efforts to reach an
agreement to prevent Colombia’s spraying programme from harming Ecuador,
and the basis for the Court’s jurisdiction over this dispute.
5.2 This Chapter describes the specific dangers to people, plants, animals and
the environment presented by Colombia’s aerial spraying of toxic herbicides.
Section I examines the chemical components of Colombia’s herbicidal spray
mixture. It shows that although Colombia has never fully disclosed all of the
chemicals used in the mixture, the principal component is known to be
glyphosate, a powerful herbicide that is deadly to all plants even in minute
quantities. By combining glyphosate with other toxic chemical agents that
increase the herbicide’s potency, Colombia has made the spray significantly more
lethal, not only to coca plants but also to all other plants impacted by the spray,
including the food crops that are a vital source of subsistence for the local
population, and the natural flora that comprise much of the region’s extraordinary
biodiversity. The chemicals in Colombia’s spray mixture are toxic to people and
animals, as well as plants. Section II of this Chapter describes the specific risks
to human health, and to plant and animal life, posed by aerial spraying of
Colombia’s herbicidal mixture. These risks are confirmed by regulatory
authorities -- including agencies of the Colombian government -- scientific
experts, United Nations Special Rapporteurs, and the manufacturer’s legally-
binding warnings and restrictions on use. This Section also draws on the
conclusions of a team of leading experts in the fields of ecology, toxicology,
epidemiology, medicine, veterinary medicine, chemistry, agrochemical regulation
111 215
and risk assessment (“Menzie Report”) . Section III shows that the aerial spray
is difficult to control, especially in the climatic and geographical circumstances of
the Ecuador/Colombia border region, and that it inevitably disperses over large
areas beyond the targeted coca fields, reaching population centres, subsistence
crops, sources of drinking water and natural forests several kilometres away.
Section IV shows, based on reports of independent third-party observers and
first-hand accounts, that Colombia’s aerial spraying programme has, in fact,
inflicted the very harms on people, plants and animals in Colombia that product
manufacturers and laboratory studies have predicted would occur, based on the
toxicity of the spray mixture, its aerial application and the difficulty of confining
it to targeted locations.
5.3 Ecuador does not assert any claims against Colombia for harms caused by
Colombia to its own people, property or natural environment. Ecuador’s claims
are based solely on harms caused by Colombia’s aerial spraying programme
within Ecuador, namely to people, plants, animals and the natural environment on
the Ecuadorian side of the common border. These harms are described in detail
in Chapter VI, where they are supported by reports of the United Nations,
Ecuadorian and Colombian government agencies and civil society organizations,
and the first-hand testimony of witnesses who have personally experienced the
impacts of the spraying programme.
215Charles A. Menzie, PhD, Pieter N. Booth,MS & Susan B. Kane Driscoll, PhD, with
contributions/advice from Angelina J. Duggan, PhD, Charlotte H. Edinboro, DVM, PhD, Anne
Fairbrother, DVM, PhD, Marion J. Fedoruk, MD, CIH, DABT, FACMT, Janci Chunn Lindsay,
PhD,Katherine Palmquist,PhD & Brian J. Prince, MRQA, Evaluation of Chemicals Used in
Colombia's Aerial Spraying Program and Hazards Presented to People, Plants, Animals, and the
Environment in Ecuador (hereinafter “Menzie Report”) (Apr. 2009). EM, Vol. III, Annex 158.
112 Section I. The Toxic Chemicals in the Herbicidal Spray Mixture
216
5.4 Herbicides are substances that are designed to kill unwanted plants .
They may be derived from chemicals, or from natural materials including
217
animals, plants, minerals, bacteria or fungi . To enhance their lethal effect,
herbicides can be mixed with other ingredients, either at the time of manufacture
or in the field prior to use.
5.5 The exact composition of the spray mixture used by Colombia is not
known to Ecuador. Ecuador has repeatedly, but without success, requested this
information from Colombia 218. Though some of the ingredients remain
undisclosed, Colombia has indicated that the spray mixture contains at least one
herbicide product whose main ingredient is a chemical known as glyphosate.
Colombia has not revealed which specific glyphosate-based product is used.
Nevertheless, a number of official sources indicate that the product is an
enhanced variant of a commercial herbicide commonly known as “Roundup” 219.
Added to Roundup is another chemical called Cosmo-Flux 411F, manufactured in
Colombia, that is designed to increase the lethality of the herbicide 22. The
216Herbicides are a class of pesticides, the “pest” being an unwanted plant.
217
United States Environmental Protection Agency, Types of Pesticides , available at
http://www.epa.gov/pesticides/about/types.htm (last visited 16 Mar. 2009).
218
See, supra e.g.,, Chap. III, paras. 3.9–3.10, 3.13, 3.16.
219Roundup is the most common trade name for the many glyphosate-based herbicide
formulations manufactured by Monsanto Corporation.
220United States Department of State, Bureau for International Narcotics and Law Enforcement
Affairs, Report on Issues Related to the Aerial Eradication of Illicit Coca in Colombia: Chemicals
Used in the Aerial Eradication of Illicit Coca in Colombia and Conditions of Application
(hereinafter “Chemicals Used”) (Sep. 2002), pp. 1–2, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/13234.htmlast visited 26 Mar. 2009). EM, Vol. III,
Annex 144; Cosmoagro, S.A., Cosmo-Flux 411F (hereinafter “Cosmo-Flux Product
Information”), available at http://www.cosmoagro.com (last visited 1 Mar. 2009). EM, Vol. III,
Annex 112.
113mixture contains still other chemicals, the identities of which Colombia refuses to
divulge.
A. G LYPHOSATE : THE B ASE CHEMICAL
5.6 As noted above, the principal herbicide in the Roundup product used by
221
Colombia is glyphosate . This powerful chemical is considered an “active”
222
ingredient because it does the work of killing plants . Glyphosate is deadly to
plants because it circulates throughout their leaves, roots and other tissues,
223
thereby affecting more than just the treated foliage . Once it has penetrated the
224
entire plant, it blocks an internal process necessary for plant growth . The
visible effects of glyphosate are not always immediate; however, within days or
weeks plants treated with glyphosate display stunted growth, wither and turn
221United States Department of State, Bureau for International Narcotics and Law Enforcement
Affairs, Report on Issues Related to the Aerial Eradication of Illicit Coca in Colombia: Updated
Report on Chemicals Used in the Aerial Eradication Program (hereinafter “Updated Report on
Chemicals Used”) (Dec. 2003), p. 1, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/13234.htm visited 26 Mar. 2009). EM, Vol. III,
Annex 148; Chemicals Used, op. cit., p. 1. EM, Vol. III, Annex 144.
222
United States Environmental Protection Agency, Inert (other) Ingredients in Pesticide
Products, available at http://www.epa.gov/opprd001/inerts/ (last visited 16 Mar. 2009).
223United States Environmental Protection Agency, Office of Prevention, Pesticides and Toxic
Substances, Report on Issues Related to the Aerial Eradication of Illicit Coca in Colombia,
Response from EPA Assistant Administrator Johnson to Secretary of State, (hereinafter “EPA
2002 Analysis”) (19 Aug. 2002), p. 8,available at
http://www.state.gov/p/inl/rls/rpt/aeicc/13237.htm visited 26 Mar. 2009). EM, Vol. III,
Annex 143; United States Roundup Pro Label, p. 2, Sec. 5.0. EM, Vol. III, Annex 128.
224
Keith R. Solomon et al., Environmental and Human Health Assessment of the Aerial Spray
Program for Coca and Poppy Control in Colombia, prepared for the Inter-American Drug Abuse
Control Commission (CICAD), Organization of American States (OAS), (hereinafter “CICAD
Report”) (31 Mar. 2005), p. 21. EM, Vol. III, Annex 151; United States Roundup Pro Label, p. 2,
Sec. 5.0. EM, Vol. III, Annex 128. More specifically, glyphosate inhibits a biochemical pathway
found only in plants and microorganisms that is essential for the formation of specific amino
acids. By disrupting the pathway, compounds necessary for the plant’s survival cannot be made.
CICAD Report, op. cit., p. 21. EM, Vol. III, Annex 151; United States Roundup Pro Label, p. 2,
Sec. 5.0. EM, Vol. III, Annex 128.
114yellow. Eventually the entire plant turns brown and dies 225. Glyphosate is so
complete in its destruction that even the plant’s root system deteriorates 226.
5.7 Particular care must be employed when spraying glyphosate because, as a
227
non-selective or broad-spectrum herbicide, it kills plants indiscriminately . In
other words, if glyphosate is inadvertently sprayed on food crops -- such as the
crops that people in Ecuador depend upon as an essential food source -- they will
die just as readily as unwanted plants, like the coca that is grown in Colombia.
5.8 Because of the indiscriminate nature of their killing power, glyphosate-
based herbicides are often used for clearing large areas of all vegetation, such as
highway corridors or public utility rights-of-way 228. The Roundup product
believed to be used by Colombia is approved in the United States of America, for
229
example, only for such non-agricultural uses .
225As the Menzie Report describes: “A plant treated with glyphosate will initially stop growing.
Cessation of growth can be followed by yellowing of tissue (chlorosis), drying of leaves, leaf
drop, scorching or curling of leaves, retardation of shoots, leaf deformation, bud proliferation, and
finally necrosis (death).” Menzie Report, op. cit., Sec. 3.1. EM, Vol. III, Annex 158.
226United States Roundup Pro Label, p. 2, Sec. 5.0. EM, Vol. III, Annex 128.
227EPA 2002 Analysis, op. cit., p. 5. EM, Vol. III, Annex 143; U.S. Roundup Pro Label, p. 2, Sec.
5.0. EM, Vol. III, Annex 128.
228EPA 2002 Analysis, op. cit., p. 4. EM, Vol. III, Annex 143; CICAD Report, op. cit., p. 20.
EM, Vol. III, Annex 151.
229
Chemicals Used, op. cit., p. 1 (reporting that “the commercial glyphosate formulation used in
the spray mixture is registered with the U.S. Environmental Protection Agency (EPA) for sale in
the United States for non-agricultural use”). EM, Vol. III, Annex 144; See, e.g., United States
Roundup SL Label, p. 6 (“This product may be used as recommended for: Control of undesired
annual and perennial herbaceous weeds in non-cropped rangelands; Control of undesired woody
brush and small trees; Aid to burning treatment to establish and maintain fuel breaks, fire
perimeters, and black lines; Along roads and utility rights of way; Around industrial sites,
parking, buildings, fencing, etc.”). EM, Vol. III, Annex 129.
1155.9 It takes only a minute dose of glyphosate to kill a plant. As the
manufacturer’s United States label instructs, “[d]o not allow the herbicide
solution to mist, drip, drift or splash onto desirable vegetation since minute
quantities of this product can cause severe damage or destruction to the crop,
230
plants or other areas on which treatment was not intended” .
5.10 Even when the amount of exposure is so small that the plant is not killed
outright, glyphosate may still cause serious injury that results in long-term plant
illness or eventual death. Glyphosate achieves this effect by causing abnormal
growth 231, impairing soil health and nutrient uptake 232, and increasing the plant’s
233
susceptibility to disease . The United States Environmental Protection Agency
234
(“U.S. EPA”) notes that following exposure to glyphosate spray drift, “[s]ome
230United States Roundup Pro Label, p. 2, Sec. 5.0. EM, Vol. III, Annex 128.
231The U.S. Environmental Protection Agency Glyphosate Reregistration Decision explains that
in addition to being used for total vegetation control, glyphosate may be applied at lower rates as a
plant growth regulator. United States Environmental Protection Agency, Glyphosate
Reregistration Eligibility Decision Fact Sheet (hereinafter “Glyphosate RED”) (Sep. 1993), p. 1.
EM, Vol. III, Annex 132.
232Menzie Report, op. cit., Secs. 3.1, 5.2.2. EM, Vol. III, Annex 158.
233C. André Lévesque & James E. Rahe, Herbicide Interactions with Fungal Root Pathogens,
with Special Reference to Glyphosate , Annu. Rev. Phytopatho l, Vol. 30 (hereinafter “ Herbicide
Interactions with Fungal Root Pathogens ”) (1992), pp. 579–602. EM, Vol. III, Annex 132;
Menzie Report, op. cit., Sec. 5.2.2. EM, Vol. III, Annex 158. Ecuadorian Scientific Commission,
The Plan Colombia Aerial Spraying System and Its Impacts on the Ecosystem and Health on the
Ecuadorian Border (hereinafter “ Ecuadorian Scientific Commission Report ”) (Apr. 2007), pp.
92–93. EM, Vol. III, Annex 157.
234
As noted in Chapter II, the United States government provides financial and programmatic
support for Colombia’s aerial spraying operations, primarily through the United States
Department of State’s Bureau for International Narcotics and Law Enforcement Affairs and the
Narcotic Affairs Section of the United States Embassy in Bogotá. The U.S. EPA has been
engaged to evaluate the human health and ecological risks of the aerial spraying program. The
United States Department of Agriculture has tested various methods to eradicate drug crops in
Colombia, including both chemical and biological methods; the agency has also been involved in
evaluating the effectiveness of eradication efforts.
116affected plants would likely recover while more sensitive plants may die, have
235
reduced reproductive success, or reduced yields (crop plants)” .
5.11 Because of the non-selective nature of glyphosate, the herbicide is only
intentionally sprayed near crops that have been genetically engineered to resist
the effects of glyphosate because plants that lack this genetic modification will be
killed by even minimal exposure to the spray 23. For this reason, Roundup’s
manufacturer expressly warns:
“THIS COMPANY RECOMMENDS USE OF THIS PRODUCT
FOR POSTEMERGENCE APPLICATION ONLY ON CROP
VARIETIES DESIGNATED AS CONTAINING THE
ROUNDUP READY GENE. Applying this product to crop
varieties that are not designated as Roundup Ready will result in
severe crop injury and yield loss. Avoid contact with foliage,
green stems, or fruit of crops, or any desirable plants that do not
contain the Roundup Ready237ne, since severe injury or
destruction will result.”
Of course, neither the crops grown by subsistence farmers in the border regions of
Ecuador nor the natural vegetation that supports Ecuador’s extraordinary
biodiversity have the built-in genetic modifications necessary to avoid such
damage.
235EPA 2002 Analysis, op. cit., p. 32. EM, Vol. III, Annex 143. Even a report prepared by the
Inter-American Drug Abuse Control Commission (CIDAD) of the Organization of American
States that generally defends Colombia’s spray program acknowledges that exposure to
glyphosate can also harm future generations of plants, which may affect long-term crop
productivity. For instance, the report acknowledges that “[n]on-target impacts of glyphosate on
seed germination and growth characteristics of the F1 generation of treated wild plant species
have been reported.” CICAD Report, op. cit., p. 71. EM, Vol. III, Annex 151.
236See EPA 2002 Analysis, op. cit., p. 4. EM, Vol. III, Annex 143.
237United States Roundup Original Label , p. 12, Sec. 11.0 (emphasis in original). EM, Vol. III,
Annex 127.
1175.12 Colombia’s spraying programme bears little resemblance to commercial
applications of Roundup. The UN Special Rapporteur on the Right to Health,
Mr. Paul Hunt, rejected as misleading any suggestion that either the composition
or the concentration of the spray mixture used by Colombia was equivalent to
herbicides used for agricultural purposes in Ecuador:
“The Special Rapporteur notes that the use of glyphosate in
Ecuador (direct and manual) is different from the method used on
the border by Colombia (aerial spraying). Furthermore, as the
composition and concentration of the spraying appear to differ
between Ecuador and Colombia, the suggested equivalence 238
between Ecuadorian and Colombian practice is misleading.”
5.13 Reports indicate that spray mixtures used by Colombia for drug
interdiction contain much more glyphosate than is typically used in agricultural
applications. The elevated concentration of the active ingredient makes the spray
significantly more toxic not only to the targeted drug-producing plants but also to
people, animals, crops and the environment. In that regard, the UN Special
Rapporteur on the Adverse Effects of the Movement and Dumping of Toxic and
Dangerous Products and Wastes on the Enjoyment of Human Rights, Okechukwu
Ibeanu, explained that:
“[A]lthough the herbicides used to destroy drug crops in an area
affected by armed conflict use the same toxic ingredient as that
used by commercially available herbicides, the concentration of
this active ingredient varies from 1 per cent in herbicides used in
agriculture to 26 per cent for those used to destroy drug crops,
making it much more toxic” 239.
238Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, Preliminary Note on the Mission to Ecuador
and Colombia, U.N. Doc. A/HRC/7/11/Add.3 (4 Mar. 2007), para. 18. EM, Vol. II, Annex 31.
239Report of the Special Rapporteur, Okechukwu Ibeanu , Adverse Effects of the Illicit Movement
and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights ,
1185.14 The U.S. EPA has also noted that the application rate of glyphosate in
Colombia’s spraying programme far exceeds average rates of application at U.S.
240
agricultural sites . A United States Department of Agriculture (“USDA”)
researcher engaged in defining the optimal parameters for the aerial spray
programme wrote that the application rate is more than three times greater than
what is necessary to eradicate coca plants effectively:
“I found that 1 lb/acre [1.12 kg/ha] acid equivalent (a.e.)
glyphosate, used with my best surfactant system, was sufficient to
make coca nonproductive. The spray solution used for coca
eradication in Colombia contains 3.5 lb/acre (ae) [3.8 kg/ha]
241
glyphosate.”
5.15 Such high rates of application are problematic not only because of
glyphosate’s lethality to crops and other desirable plants, but also because of
human and animal health concerns. As noted in a report prepared by the Inter-
American Drug Abuse Control Commission of the Organization of American
States at Colombia’s request (“CICAD Report”), several scientific studies have
“reported on the relation between adverse reproductive outcomes and the use of
(hereinafter “Report of the Sp ecial Rapporteur on Toxic and Dangerous Products”) U.N. Doc.
A/HRC/5/5 (5 May 2007), para. 20. EM, Vol. II, Annex 32; see also Comptroller General of the
Republic of Colombia, Plan Colombia: Fifth Evaluation Report (Dec. 2004), p. 35 (noting that an
elevated percentage of chemicals have been applied in various geographical regions). EM, Vol.
II, Annex 99.
240
United States Environmental Protection Agency, Office of Pesticide Programs, Details of the
2003 Consultation for the Department of State: Use of Pesticide for Coca and Poppy Eradication
Program in Colombia (hereinafter “ EPA 2003 Analysis ”) (June 2003), p. 1, available at
http://www.state.gov/documents/organization/27516.pdf(last visited 26 Mar. 2009) (“[f]or coca
eradication, glyphosate is sprayed fro m fixed wing aircraft at sp eeds around 165 mph at 4.4
pounds active ingredient (isopropylamine salt) per acre”). EM, Vol. III, Annex 146EPA 2002
Analysis, op. cit., p. 3 (“actual rates per application in [U.S.] agricultural sites average less than
0.75 pounds of the active ingredient glyphosate per acre”). EM, Vol. III, Annex 143.
241
Ron Collins, Agronomist, Weed Science Laboratory, Agricultural Research Service, United
States Department of Agriculture, Glyphosate Aerial Application to Control Erythroxylum sp. in
Colombia: Spray Droplet Evaluation, Draft (hereinafter “USDA Glyphosate Aerial Application”)
(23 Dec. 1998), p. 8. EM, Vol. III, Annex 138.
119glyphosate”, including one that “observed a moderate increase in the risk of late
abortions associated with preconception exposure to glyphosate” and another that
“reported a positive association … when both spouses participated in activities
242
where they could be exposed to pesticides” . Similarly, the U.S. EPA has
reported on animal studies linking exposure of the chemical to maternal health
effects including diarrhea, nasal discharge, and even death; it has also reported
243
that glyphosate may affect foetal development . An assessment provided to
244
Ecuador by the Colombian National Anti-Narcotics Agency Police has also
linked the chemical to serious health risks:
“The symptoms that can be caused by Glyphosate poisoning by
ingestion can include the erosion of the intestinal tract, which
manifests as difficulty in swallowing, sore throat, and
gastrointestinal hemorrhaging. Other organs affected are the
lungs, liver, cardiovascular system, kidneys, and central nervous
system. … The signs and symptoms resulting from incidental
dermal exposure in the use of the compound include skin diseases
such as periorbital edema, cardiovascular effects (tachycardia and
hypertension), inflammation and parest245ia at the site of contact,
and prolonged cutaneous irritation.”
B. SUPPLEMENTARY CHEMICALS
5.16 Roundup formulations typically contain more than glyphosate; they also
contain other chemicals that increase the herbicide’s lethality. These additives
242
CICAD Report, op. cit., p. 55. EM, Vol. III, Annex 151.
243
United States Environmental Protection Agency, GLYPHOSATE – 2nd Report of the Hazard
Identification Assessment Review Committee (22 Jan. 2002), pp. 3–4, 9, 12. EM, Vol. III, Annex
142; United States Environmental Protection Agency,GLYPHOSATE – Report of the Hazard
Identification Review Committee (20 Apr. 1998), pp. 3–4, 7–8, 10. EM, Vol. III, Annex 134.
244See supra Chap. III, para. 3.33.
245Republic of Colombia, Environmental Risk of the Herbicide Glyphosate (date unknown), Secs.
1.7.1-1.7.2. EM, Vol. II, Annex 101.
120 246
can be even more toxic than glyphosate itself . This is particularly true of the
herbicide spray used by Colombia.
5.17 Some of the chemicals added to glyphosate in the mixture used by
Colombia are known as surfactants 247. These additives help glyphosate adhere to
the plant leaf and penetrate its waxy surface layer, thereby increasing its
potency 248. Surfactants are particularly important in Colombia’s spraying
programme because coca plants have waxy leaves and woody branches, which
make them more resistant to the spray than soft, non-woody plants 249. Many of
the native plant species in the region, and most of the crops grown by the
residents of Ecuador’s border communities, lack the woody stems and waxy
246
EPA 2002 Analysis, op. cit., p. 32 (“Ecological toxicity studies submitted to EPA for some of
the formulations of glyphosate products that EPA has registered have shown them to be more
toxic than glyphosate alone.”). EM, Vol. III, Annex 143; CICAD Report, op. cit., p. 93. EM, Vol.
III, Annex 151; Ecuadorian Scientific Commission Report , op. cit., p. 26. EM, Vol. III, Annex
157.
247
Chemicals Used, op. cit., pp. 1–2. EM, Vol. III, Annex 144; Updated Report on Chemicals
Used, op. cit., p. 1. EM, Vol. III, Annex 148. Surfactants are one type of “inert ingredient”; it is
unclear exactly which inert ingredients are included in the formulation used by Colombia. See
EPA 2003 Analysis, op. cit., pp. 13–14. EM, Vol. III, Annex 146; EPA 2002 Analysis, op. cit., pp.
10–11. EM, Vol. III, Annex 143. The CICAD Report states that the spray mixture “contains
several formulants which are common to the commercial product as used in agricultur[e]”,
however, the specific formulants (inert ingredients added to glyphosate by the manufacturer) are
not identified. CICAD Report, op. cit., p. 24. EM, Vol. III, Annex 151.
248
CICAD Report, op. cit., pp. 23–24. EM, Vol. III, Annex 151; EPA 2002 Analysis, op. cit., p. 5.
EM, Vol. III, Annex 143. As the Menzie Report explains, “[t]he purpose of adding surfactants to
the glyphosate is to increase the uptake of glyphosate by plants and thus increase the effectiveness
of glyphosate at killing plants. Surfactants increase the efficacy of the herbicide by improving
adherence to the plant, enhancing the spread, dispersion, and penetration of the herbicide into
plant tissues by disrupting the waxy cuticle on the foliage, and reducing the surface tension of the
formulation on the surface of the plant.”). Menzie Report, op. cit., Sec. 3.2. EM, Vol. III, Annex
158.
249 See Chemicals Used , op. cit. , pp. 1–2. EM, Vol. III, Annex 144; Updated Report on
Chemicals Used, op. cit., p. 3. EM, Vol. III, Annex 148; Menzie Report, op. cit., Sec. 5.2.1. EM,
Vol. III, Annex 158.
121leaves of the coca plant. This renders them more vulnerable to Colombia’s
250
surfactant-heavy herbicide spray than the targeted coca plants .
5.18 Colombia has reported that at least one surfactant is used in the
formulated Roundup product: polyoxyethyleneamine (“POEA”) 251. Surfactants
not only make the mixture more toxic to plants -- that is their function -- they also
make the product more toxic to humans and animals 252. This is certainly true of
POEA, which, by itself, causes severe skin irritation and is corrosive to the
eyes 253. POEA may also cause gastrointestinal damage, kidney and liver damage,
affect the central nervous system, destroy red blood cells and induce breathing
250Menzie Report, op. cit., Sec. 5.2.1. EM, Vol. III, Annex 158.
251Chemicals Used, op. cit., p. 10. EM, Vol. III, Annex 144; EPA 2003 Analysis, op. cit., p. 13,
EM, Vol. III, Annex 146. POEA is also known as polyoxyethylene alkylamine or tallow amine
ethoxylate.
252See CICAD Report, op. cit., p. 93 (“It is also known that it is the surfactants that determine the
toxicity of the formulation as many are more toxic than technical glyphosate itself.”). EM, Vol.
III, Annex 151; Ecuadorian Scientific Commission Report , op. cit., p. 30 (“the acute toxicity of
the surfactant POEA is 4 to 5 times greater than that of glyphosate and Roundup.”). EM, Vol. III,
Annex 157; Japan Roundup Product Safety Data Sheet (hereinafter “Japan Roundup Safety Data
Sheet”), available at http://www.roundupjp.com/deta/index.html(last visited 26 Mar. 2009) (“The
surfactant that is a component of Roundup herbicide may cause eye and skin irritation, and there
is a possibility that the irritating property of this product is due to such properties of the
surfactant.”). EM, Vol. III, Annex 121; Menzie Report, op. cit., Executive Summary (“While the
exact composition and amounts of the various surfactants and other additives are unknown, the
addition of these chemicals brings with it increased hazards to non-target plants, as well as to
people, agriculture, and the environment”). EM, Vol. III, Annex 158.
253EPA 2003 Analysis, op. cit., p. 13. EM, Vol. III, Annex 146.
122 254
difficulties . It has also been linked to problems with pregnancy and even
255
cancer .
5.19 In addition to POEA, the Roundup product contains another additive, the
identity of which Colombia refuses to disclose 256. The U.S. EPA has indicated
that this ingredient also presents toxicity concerns, though without knowing its
chemical make-up Ecuador cannot independently evaluate these risks 257.
5.20 The Roundup product is further adulterated by Colombia. In addition to
glyphosate, POEA and the undisclosed additive that make up the Roundup
product, reports indicate that another chemical, known as Cosmo-Flux 411F
(“Cosmo-Flux”), is added to the mixture prior to each spraying operation by
258
members of the Colombian National Police working at air bases in Colombia .
The U.S. Department of State has noted that “Cosmo-Flux 411F is produced,
sold, and purchased for the GOC [Government of Colombia] in Colombia but is
not sold in the United States.” 259
254
Government of Colombia National Health Institute, Evaluation of the Effects of Glyphosate on
Human Health in Illicit Crop Eradication Program Influence Zones (2003) (hereinafter
“Evaluation of the Effects of Glyphosate on Human Health ”), p. 5, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/57013.htm(last visited 26 Mar. 2009). EM, Vol. II,
Annex 96; EPA 2003 Analysis, op. cit., p. 13. EM, Vol. III, Annex 146.
255Evaluation of the Effects of Glyphosate on Human Health , op. cit., p. 5. EM, Vol. II, Annex
96; EPA 2003 Analysis, op. cit., p. 13. EM, Vol. III, Annex 146.
256 EPA 2003 Analysis , op. cit. , p. 13 (showing that the commercial glyphosate formulation
contains POEA and another undisclosed ingredient). EM, Vol. III, Annex 146.
257Ibid.
258
Chemicals Used, op. cit., p. 2. EM, Vol. III, Annex 144; EPA 2003 Analysis, op. cit., pp. 13–
14. EM, Vol. III, Annex 146.
259
Chemicals Used, op. cit., p. 2. EM, Vol. III, Annex 144.
1235.21 Like other surfactants, Cosmo-Flux increases the absorption of glyphosate
into plant leaves and improves its efficiency at killing plants 260. According to
Cosmoagro, a Colombian manufacturer of the chemical, Cosmo-Flux quadruples
the biological action of glyphosate, making the spray far more toxic to off-target
261
plants than the powerful Roundup mixture alone . The specific chemical
composition of Cosmo-Flux is unknown and Colombia refuses to disclose the
262
formula .
5.22 Although Colombia’s refusal to divulge the exact composition of Cosmo-
Flux makes it impossible for Ecuador to fully assess its human health impacts,
what is known is cause for concern. The U.S. EPA has noted that one of the
undisclosed components of Cosmo-Flux “can cause dermal and ocular irritation
and, in high doses orally, can cause significant toxicity” 263. Personal precaution
measures for Cosmo-Flux include use of a breathing apparatus, gloves and eye
protection 264. The first aid instructions in the event of exposure are as follows:
“In any event, please consult a Doctor!
260Cosmo-Flux Product Information, op. cit. EM, Vol. III, Annex 112; CICAD Report, op. cit., p.
24. EM, Vol. III, Annex 151.
261 See Cosmo-Flux Product Information , op. cit . (Cosmo-Flux 411-F “is a non-ionic
stereospecific adjuvant that substantially modifies the biological activity of agrochemicals...
Adding the adjuvant COSMO-FLUX 411F to the application of insecticides, fungicides and
herbicides prepared in mixtures of mineral or vegetable oil has been shown to have the ability to
increase the efficiency of these products. Its effectiveness is four (4) times greater than
conventional spraying oils due to synergism between the paraffinic oil and the stereospecific
surfactant.”) (emphasis in original). EM, Vol. III, Annex 112; see also Ecuadorian Scientific
Commission Report, op. cit., p. 30 (noting that Cosmo-Flux “has been shown to increase the effect
of Roundup fourfold by increasing glyphosate’s penetrating power”). EM, Vol. III, Annex 157.
262EPA 2003 Analysis, op. cit., pp. 13-14. EM, Vol. III, Annex 146; Comptroller General of the
Republic of Colombia, Plan Colombia: Fourth Evaluation Report (hereinafter “ Comptroller
General Fourth Evaluation Report”) (July 2003), p. 35. EM, Vol. II, Annex 98; See supra Chap.
III, paras. 3.9–3.10, 3.13, 3.16.
263EPA 2003 Analysis, op. cit., p. 14. EM, Vol. III, Annex 146.
264
Cosmo-Flux 411F Safety Data Sheet, p. 2, Sec. 7. EM, Vol. III, Annex 114.
124 Eye contact: Wash with clean, purified water until irritation
disappears or use an eye solution. If irritation persists, seek
medical attention.
Skin Contact: Wash with plenty of water; use soap if available.
Remove heavily contaminated clothing, including shoes, and wash
well before using.
Inhalation: Using appropriate breathing apparatus, remove the
person from the site into fresh air and call a doctor.
Ingestion: Do not induce vomiting, keep the person at rest. Get
immediate medical attention.” 265
5.23 Cosmo-Flux is also toxic to the environment. Its manufacturer warns that
the product is “[h]armful to aquatic organisms, fish and algae” and creates
266
“[e]nvironmental risk in case of accident (spills/leaks)” .
5.24 The original manufacturer of one of the ingredients in Cosmo-Flux was so
opposed to its use in Colombia’s aerial spraying programme that it stopped
making the product. In 2001, Imperial Chemical Industries (“ICI”), a British
chemical company, suspended the sale of its chemical product called “Atplus
300F”, which was used by Cosmoagro in the production of Cosmo-Flux. ICI
withdrew Atplus 300F from the market rather than allow it to continue to be used
in Colombia’s fumigation programme, citing concerns that the herbicide mixture
265
Ibid, pp. 1–2, Sec. 4; see also Colombia Cosmo-Flux 411F Label, p. 2 (“Ingestion: Do not
induce vomiting. Skin contact: Wash with plenty of water and soap. Inhalation: Symptomatic
treatment. Eye contact: Rinse with plenty of clean water or with eye solution for 15 minutes.”).
EM, Vol. III, Annex 113.
266Cosmo-Flux 411F Safety Data Sheet , p. 1, Sec. 3. EM, Vol. III, Annex 114; see also United
States Environmental Protection Agency, Office of Pesticide Programs,CICAD Environmental
and Human Health Assessment of the Aerial Spray Program for Coca and Poppy Control in
Colombia (Ecological Effects Assessment) (hereinafter “EPA Ecological Effects Assessment”), (26
Oct. 2005), p. 2. EM, Vol. III, Annex 154.
125had not been properly tested for that use 267. Despite safety reservations sufficient
to cause ICI to withdraw its product from the market, Cosmoagro continued to
produce Cosmo-Flux and Colombia continued to use the product in its aerial
spraying programme 26.
5.25 The U.S. EPA has noted that Colombia’s refusal to divulge the chemical
composition of Cosmo-Flux makes it impossible to conduct an adequate
evaluation of the risks posed by its use:
“An important uncertainty in this risk assessment concerns
differences in the tank mix used in Colombia from those used in
the US. The Agency does not have ecological toxicity information
on adjuvant Cosmo-Flux 411F, which is neither manufactured nor
sold in the US.” 269
5.26 Colombia’s own Environment Ministry adopted a resolution demanding
that the National Anti-Narcotics Agency (“DNE” per the Spanish initials), the
agency responsible for implementation of the aerial fumigation programme,
conduct a study of the toxicological risks associated with the spray:
“The DNE shall take measures corresponding to the toxicological
classification and assessment as defined by the Ministry of Health
for the mixture (active ingredient and coadjuvant) with respect to
the toxicological risks associated with the herbicide in its approved
270
formulation.”
267
Republic of Ecuador, Ministry of Environment, Joint Report from the Workshop: Eradication
of Illicit Crops, Bogotá, Colombia (13-15 Feb. 2002), p. 10. EM, Vol. IV, Annex 163; Antony
Barnett & Solomon Hughes, “ICI Pulls Out of Cocaine War”, T HE OBSERVER (London, 1 July
2001). EM, Vol. IV, Annex 174.
268Cosmo-Flux Product Information, op. cit. EM, Vol. III, Annex 112.
269EPA 2003 Analysis, op. cit., p. 37. EM, Vol. III, Annex 146.
270
Republic of Colombia, Ministry of Environment, Environmental Management Plan, Resolution
No. 1065 (hereinafter “Colombia Ministry of Environment Resolution 1065”) (26 Nov. 2001), Art.
10. EM, Vol. II, Annex 15.
126Ecuador is not aware that the DNE ever studied the toxicological risks of the
herbicidal spray or, if it did so, that the study met with the Environment
Ministry’s approval.
C. OTHER POSSIBLE COMPONENTS OF THE SPRAY M IXTURE
5.27 As noted, Colombia refuses to disclose the chemical composition of the
spray mixture. Indeed, the composition of the spray mixture remains a mystery
even to agencies of the Colombian government such as the Comptroller
General 27. Credible sources report that the spray may contain hazardous
chemicals in addition to those already discussed above.
5.28 A USDA official involved in evaluating the effectiveness of the
Colombia’s aerial spraying programme reported that formaldehyde is or at one
time was part of the spray. He observed: “It would be in the best interest of the
eradication program to work with the GOC to have formaldehyde removed from
272
the formulation” . The presence of formaldehyde is particularly concerning
because of the significant risks it presents to human health. As the U.S. EPA has
noted:
“Formaldehyde, a colorless, pungent-smelling gas, can cause
watery eyes, burning sensations in the eyes and throat, nausea, and
271Comptroller General Fourth Evaluation Repo, op. cit., p. 35 (“[t]here are conflicting
accounts as to whether the product being used is Roundup Ultra, Roundup SL, or another
formulation, and whether or not coca and poppy crops are being sprayed with the same mixture
and concentration. Moreover, the chemical composition of Cosmoflux is also not available, based
on the argument that it constitutes information protected under intellectual property rights.
Without this information, it is impossible to determine with certainty whether EPA requirements
are being met.”). EM, Vol. II, Annex 98. The Comptroller General is a Colombian government
agency with an auditing function.
272United States Department of Agriculture, April 2001 Colombia Coca Eradication Verification
Mission Trip Report (hereinafter “USDA 2001 Verification Mission Trip Report”) (13 June 2001),
p. 5. EM, Vol. III, Annex 140.
127 difficulty in breathing in some humans exposed at elevated levels
(above 0.1 parts per million). High concentrations may trigger
attacks in people with asthma. There is evidence that some people
can develop a sensitivity to formaldehyde. It has also been shown
to cause cancer in animals and may cause cancer in humans.
Health effects include eye, nose, and throat irritation; wheezing
and coughing; fatigue; skin rash; severe allergic reactions. May
cause cancer. May also cause other effects listed under ‘organic
273
gases.’”
Ecuador has not located any evidence that Colombia removed formaldehyde from
the spray mixture, as recommended by the USDA.
5.29 Still other chemicals may be included in the spray mixture. As the
Menzie Report describes, Colombia has engaged in an experimental programme
to heighten the efficacy of the spray mixture, and there is considerable
uncertainty regarding what chemicals have been included over time 27. Some of
the additives that have been identified as particularly effective at killing coca
present substantial health or environmental risks 275. If such herbicides have been
273United States Environmental Protection Agency, An Introduction to Indoor Air Quality:
Formaldehyde, p. 2, available at http://www.epa.gov/iaq/formalde.html#Health%20Effects (last
visited 2 Apr. 2009).
274Menzie Report, op. cit., Executive Summary. EM, Vol. III, Annex 158; see also Charles S.
Helling & Mary J. Camp, United States Department of Agriculture, Verifying Coca Eradication
Effectiveness in Colombia (date unknown), pp. 10–11 (reporting that in addition to Cosmo-Flux
and the unidentified chemical described in Paragraph 5.19, the mixture contains yet another
additive that is combined with the tank mixture prior to application). EM, Vol. III, Annex 160.
275For example, the Menzie Report explains that “Silwet L-77”, crop oil concentrate, “Agri-Dex”,
and “Optima” were identified by USDA scientists as enhancing the efficacy of glyphosate for
controlling coca. Silwet L-77 is an organosilicone surfactant that helps prevent the loss of
herbicides from leaf surfaces during rain events, and therefore are suitable for use in high-
precipitation climates. It may cause irritation of the eyes, skin, mouth and throat, abdominal
discomfort, nausea, vomiting and diarrhea, as well as more serious health effects. It is a persistent
chemical that is highly toxic to fish and may cause long-term effects on aquatic systems. Crop oil
concentrate causes eye irritation. Agri-Dex can cause eye, skin, and throat irritation, among other
health effects. Optima can cause severe irritation or eye damage and is harmful if inhaled.
Menzie Report, op. cit., Sec. 3.3. EM, Vol. III, Annex 158.
128included in the spray, they would compound the risks to the health of Ecuador’s
people and environment.
5.30 Further evidence suggesting that additional chemicals may be present in
the spray comes from the UN Special Rapporteur on the Right to Food, Jean
Ziegler, who stated that:
“The Special Rapporteurs responded [to the Government of
Colombia] on 20 June 2006, saying that so far there is no clarity
about the formulation used for aerial sprayings. There are reports
that different chemicals such as Fusarium Oxisporum, Imazapir, 2-
4-D, and Paraquat have been used. Furthermore, it seems that the
proportion of glyphosate being employed and the actual
276
composition of the final product being used are unknown.”
5.31 In addition to the UN Special Rapporteur, the Governor of Putumayo
Province in Colombia has reported that the spray mixture may contain the fungus
Fusarium oxysporum 277. The USDA and the UN Drug Control Program have
long studied Fusarium oxysporum as a biocontrol agent (also known as a
mycoherbicide 27) for use against narcotic crops, and against coca in particular 279,
including testing it for use via aerial application 280.
276 Report of the Special Rapporteur on the Right to Food , Jean Ziegler, Addendum:
Communications Sent to Governments and Other Actors and Replies Received , U.N. Doc.
A/HRC/4/30/Add.1 (18 May 2007), para. 17. EM, Vol. II, Annex 33.
277“Fumigation with Fungus Confirmed”, L A H ORA (Quito, Ecuador, 23 Aug. 2000) (reporting on
a statement by the Representative of the Governor of the Department of the Putumayo, Alvaro
Salas that: “the fungus Fusarium Oxysporum was first used in his jurisdiction in November of last
year and at least twice this year.”) EM, Vol. IV, Annex 173; see also Ecuadorian Scientific
Commission Report, op. cit., pp. 20, 21 (reporting that Fusarium oxysporum may be included in
the spray mixture used by Colombia). EM, Vol. III, Annex 157.
278“Myco-” is a word from the Greek language, and refers to fungi. A mycoherbicide is a
herbicide derived from a fungus.
279See, e.g., D.C. Sands et al., Characterization of a Vascular Wilt of Erythroxylum coca Caused
by Fusarium oxyspurum f. sp. Erythrowyli Forma Specialis Nova , Plant Disease, Vol. 81, No. 5,
(hereinafter “ Characterization of Vascular Wilt ”) (May 1997), pp. 501-504 (describing the
1295.32 Use of this fungus would be of particular concern because of its potential
to infect organisms other than the targeted coca plant. The Fusarium fungus
281
spreads easily . It causes wilt, blight, rotting of plant tissue and eventually plant
282
death . Fusarium persists in soil for years, and therefore may cause long-term
283
damage to crops and other plants, lasting for years after it is first sprayed . The
effects of Fusarium oxysporum may also be exacerbated by glyphosate because
isolation of a strain of Fusarium oxysporum that is pathogenic to coca plants). EM, Vol. III,
Annex 133; United States Department of Agriculture, Agricultural Research Service, Mechanisms
of Microbial-Plant Interactions Related to Biocontrol of Weeds and Narcotic Plants (1 Oct. 1993
– 30 Sep. 1998), pp. 1–7 (describing USDA research regarding Fusarium oxysporum as a
biocontrol agent for coca). EM, Vol. III, Annex 137; United States Department of Agriculture,
Agricultural Research Service, Pathogens of Narcotic Crops and Their Use in Biological Control
Strategies to Reduce Narcotics (hereinafter “ Pathogens of Narcotic Crops ”) (1 Oct. 1998 – 30
Sep. 2003), pp. 1–5. EM, Vol. III, Annex 147; Tim Johnson, “U.S. Seeks to Test Fungus That
Kills Coca”, THE M IAMI HERALD (Miami, Florida, United States, 3 July 2000), p. A1 (quoting
Klaus Nyholm, director of the U.N. Drug Control Program's office in Colombia and Ecuador, who
stated that “[o]ur experts tell us thaFusarium oxysporum] is worth trying”). EM, Vol. IV,
Annex 172.
280United States Department of Agriculture, Agricultural Research Service, Discovery and
Development and Mechanism of Action of Biocontrol Agents for Perennial and Annual Weeds
(hereinafter “Discovery and Development and Mechanism of Action of Biocontrol Agents ”) (1
Oct. 1993 – 30 Sep. 1998), p. 2 (“Methods will be devised to grow biomass in liquid fermentors
and formulate biomass in a form that can be delivered by aerial application.”). EM, Vol. IV,
Annex 136.
281
Characterization of Vascular Wilt , op. cit., p. 504. EM, Vol. III, Annex 133Pathogens of
Narcotic Crops , op. cit. , p. 3. EM, Vol. III, Annex 147; Discovery and Development and
Mechanism of Action of Biocontrol Agents , op. cit., p. 4. EM, Vol. IV, Annex 136; Ecuadorian
Scientific Commission Report, op. cit., p. 31. EM, Vol. III, Annex 157.
282
Characterization of Vascular Wilt , op. cit., p. 501. EM, Vol. III, Annex 133; Andrew K.
Gonsalves & Stephen A. Ferreira, Fusarium Primer , available at
http://www.extento.hawaii.edu/kbase/crop/Type/fus_prim.htm (last visited 26 Mar. 2009);
Ecuadorian Scientific Commission Report , op. cit. , pp. 30–31. EM, Vo l. III, Annex 157;
Characterization of Vascular Wilt, op. cit., p. 501. EM, Vol. III, Annex 133.
283See Characterization of Vascular Wilt , op. cit., p. 504. EM, Vol. III, Annex 13Discovery
and Development and Mechanism of Action of Biocontrol Agents , op. cit., p. 3. EM, Vol. IV,
Annex 136; Ecuadorian Scientific Commission Report, op. cit., p. 31. EM, Vol. III, Annex 157.
130the chemical weakens agricultural systems in a way that makes them more
284
vulnerable to attack by the fungus .
5.33 The changing constituents of the spray add to the difficulty of determining
its effects on people, plants, animals and the environment. The United States
Department of State has reported at least one change since the initiation of
spraying near the border with Ecuador in the year 2000 285. USDA researchers
have been engaged for over a decade in testing to maximize the herbicide
compound’s lethality 286 and follow-up studies to the CICAD Report indicate that
testing of various chemical combinations has continued as recently as 2006 287.
Colombia has never provided Ecuador with the information necessary to
284
Menzie Report, op. cit., Sec. 5.2.2 (explaining that “glyphosate exposure weakens plants’
immunity to fungal infections”). EM, Vol. III, Annex 158; Herbicide Interactions with Fungal
Root Pathogens, op. cit., pp. 579–580 (noting that “herbicides can alter soil ecosystems by having
a direct effect on various components of the soil microflora, such as plant pathogens, antagonists,
or mycorrhizae…These effects can result in increased or decreased incidence of plant disease, for
example through the promotion or suppression of the activities of beneficial
microorganisms…Nonspecialized pathogens can increase their potential on weeds and
subsequently affect crops…As still another effect, herbicides can predispose pathogens to
fungicides or act as synergists.”). EM, Vol. III, Annex 132; Ecuadorian Scientific Commission
Report, op. cit., pp. 92–93. EM, Vol. III, Annex 157.
285
Updated Report on Chemicals Used, op. cit., p. 1. EM, Vol. III, Annex 148.
286United States Department of Agriculture, Agricultural Research Service, Strategies for
Controlling Narcotic Plant Production (hereinafter “ USDA Strategies for Controlling Narcotic
Plant Production”) (30 Sep. 1995 – 29 Sep. 2000), p. 3. EM, Vol. IV, Annex 139; see also USDA
Glyphosate Aerial Application , op. cit., p. 8. EM, Vol. III, Annex 138; Ronald T. Collins &
Charles S. Helling, Surfactant-Enhanced Control of Two Erythroxylum Species by Glyphosate ,
Weed Technology, Vol. 16 (2002), pp. 851–859. EM, Vol. IV, Annex 141.
287
Inter-American Drug Abuse Control Commission (CICAD), Interim Report on Follow-Up
Studies: Environmental and Human Health Assessment of the Aerial Spray Program for Coca and
Poppy Control in Colombia (hereinafter “ CICAD Interim Report ”) (July 2006), pp. 3–4. EM,
Vol. IV, Annex 155; Inter-American Drug Abuse Control Commission (CICAD), Second Phase
Environmental and Human Health Assessment of the Aerial Spray Program for Coca and Poppy
Control in Colombia (hereinafter “CICAD Second Phase Assessment”) (date unknown). EM, Vol.
IV, Annex 159.
131independently evaluate these reports or to assess how changes in the spray could
288
affect Ecuador’s territory, people and environment .
5.34 The uncertainties about the content of the spray and how it has changed
over time increase the already significant concerns about the spraying
programme’s risks to human health and the environment. In that regard, Ecuador
is content to adopt the view of Colombia’s Comptroller General, who has stated:
“The profound differences of opinion mentioned above,
concerning the type and magnitude of the effects of glyphosate on
ecosystems and human health; in addition, to doubts on the exact
composition of the mixture sprayed, make credible the existence
289
of a real danger due to the spraying in question.”
Section II. The Spray Mixture’s Effects on People, Plants, Animals and the
Environment
A. E FFECTS ON PEOPLE
5.35 Contact with the spray mixture dispersed by Colombia poses direct risks
to human health, including eye and skin irritation, respiratory problems and
gastrointestinal effects including nausea, vomiting and diarrhea. According to
Colombia’s Comptroller General, unprotected persons will suffer the following
effects from exposure to the herbicides sprayed by Colombia:
“[T]here are documents, university investigations, and
environmental audits, in our country, on the effects on human
health that report that glyphosate inhalation causes irritation to the
288
Menzie Report, op. cit., Sec. 3.3. EM, Vol. III, Annex 158; See supra Chap. III, paras. 3.9–
3.10, 3.13, 3.16.
289Comptroller General of the Republic of Colombia, Plan Colombia: Second Evaluation Report
(hereinafter “Comptroller General Second Evaluation Report ”) (10 Dec. 2001), p. 44. EM, Vol.
II, Annex 94.
132 nose and throat; moreover, contact causes skin irritation. At the
same time, oral inge290on produces nausea, vomit, abdominal pain
and epigstralgia.”
5.36 Experts confirm that irritation of the eyes, skin, and throat are “associated
with the types of chemicals known to be included in the spray, particularly the
291
surfactants that are common to glyphosate formulations” . They describe a
study of accidental exposures to Roundup formulations conducted in the United
States that resulted in topical effects such as eye and skin irritation, respiratory
effects, and systemic effects, including nausea/vomiting, dizziness, fever and
292
diarrhea . Inadvertent ingestion of glyphosate formulation has resulted in
293
gastrointestinal effects such as nausea, vomiting, and diarrhea .
5.37 Eye damage -- including irreversible effects -- is a significant concern. A
2002 report by the U.S. EPA states that “[t]he label for the formulated product
used in the coca eradication program in Colombia includes the ‘Danger’ signal
word. … The product has been determined to be toxicity category I for eye
irritation, causing irreversible eye damage” 294. In the United States, as in many
other countries, toxicity category I is the highest toxicity rating assigned to any
herbicide (category I of IV) and such products must be labelled with the
corresponding “Danger” signal word 295.
290
Comptroller General Second Evaluation Report, op. cit., p. 43 (footnote omitted). EM, Vol. II,
Annex 94.
291
Menzie Report, op. cit., Executive Summary. EM, Vol. III, Annex 158.
292Ibid., Sec. 5.1.1.1.
293Ibid., Sec. 5.1.1.3.
294
EPA 2002 Analysis, op. cit., p. 8. EM, Vol. III, Annex 143.
295United States Environmental Protection Agency, Label Review Manual , Chapter 7 –
Precautionary Statements (hereinafter “EPA Label Review Manual Chap. 7”) (Aug. 2007), pp. 1,
1335.38 Children are particularly vulnerable to the spray mixture by virtue of
greater sensitivity to the chemicals 296. Children who suffer from nutritional
deficiencies -- as many children in the border region do -- are more prone to
diarrhea that may be caused by ingestion of the spray. Diarrhea is not a mere
inconvenience for a small and weakened child in a remote area with little access
to health care, as it can easily lead to dehydration and other adverse health effects,
including death 297.
5.39 The risks to human health are confirmed by the restrictions imposed on
298
the use of Roundup products by States around the world . These restrictions are
reflected in the manufacturer’s warnings about the products and their use. The
warnings are not mere hortatory guidelines or recommendations. Manufacturers
are legally required to include appropriate warnings on herbicide labels. Users
299
are then legally bound to follow the label’s restrictions on use . Jurisdictions
3, available at http://www.epa.gov/oppfead1/labeling/lrm/chap-07.htm (last visited 8 Apr. 2009).
The U.S. EPA explains: “The Signal Word, Hazards to Humans and Domestic Animals, Personal
Protective Equipment … and First Aid statements are typically determined by the results of the
six acute toxicity studies performed with the product formulation….each acute study is assigned
to a toxicity category based on the study results. Ibid., p. 1. Toxicity Category I corresponds to
the DANGER signal word. Ibid., p. 3. See, e.g., United States Roundup Export Label, p. 1. EM,
Vol. III, Annex 125; United States Roundup SL Label , p. 2. EM, Vol. III, Annex 129; United
States Fuete SL Label, p. 2. EM, Vol. III, Annex 126.
296
As the Menzie Report explains, children are more sensitive to some chemical agents,
especially because they eat more, drink more, and breathe more in proportion to their body size;
their behaviour (hand-to-mouth contact) may expose them more to chemicals; and their bodily
systems are still developing. Menzie Report, op. cit., Sec. 5.1.1.4. EM, Vol. III, Annex 158.
297
Ibid.
298Monsanto Company manufactures numerous glyphosate-based herbicide formulations under
different trade names. This section describes warnings pertaining to glyphosate-based herbicides
registered around the world. For ease of use, all of these products are described as “Roundup” in
the text.
299Menzie Report, op. cit. , Sec. 5.4 (“In the U.S. and most countries, including Colombia,
pesticidesincluding glyphosate-based herbicides and adjuvants must be registered and
labelled before the pesticide can be sold or distributed within the country. Pesticide labelling
provides legally binding requirements to control when and under what conditions a pesticide can
134throughout the world -- including Colombia -- prohibit the use of “pesticides”,
including herbicides like Roundup, in a manner inconsistent with their labels 300.
In the United Kingdom, for example, the Roundup label states: “COMPLIANCE
WITH THE FOLLOWING CONDITIONS OF USE AND ALL SAFETY
301
PRECAUTIONS MARKED* IS A LEGAL REQUIREMENT.”
5.40 Failure to comply with a label’s restrictions carries criminal and civil
penalties in many jurisdictions, including Colombia. Like many other States,
be applied, mixed, stored, loaded or used. Labels also prescribe when fields can be re-entered
after application and when and how crops can be harvested. Labelling requirements are also
imposed to specify what type of product containers must be used and how they should be
disposed.”). EM, Vol. III, Annex 158.
300For a selection of laws that require compliance with a pesticide’s labsee, e.g., Republic of
Colombia, Ministry of Health, Decree No. 1843, as amended by Decree No. 695 (26 Apr. 1995)
and Decree No. 4368 (4 Dec. 2006) (hereinafter “Colombia Ministry of Health Decree No. 1843”)
(22 July 1991), Arts. 180, 181(h). EM, Vol. II, Annex 11; See, e.g., Canada, Pest Control
Products Act, R.S.C. Chap. 28, Sec. 6(5) (2002). EM, Vol. II, Annex 16; Republic of Ecuador,
Ministry of Agriculture, General Regulation of Pesticides and Related Products for Agricultural
Use, Special Official Registry, Book II, Title XXVIII, (20 Mar. 2003), Art. 33. EM, Vol. II,
Annex 18; South Africa , Fertilizer, Farm Feeds, Agricultural Remedies and Stock Remedies Act
36 of 1947, Sec. 7(2). EM, Vol. II, Annex 7; United Kingdom, Control of Pesticides Regulations,
S.I. 1510 (1986), Regulation 4(5), as amended by Control of Pesticides (Amendment) Regulations,
S.I. 188 (1997). EM, Vol. II, Annex 13; United States, Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Sec. 136j(a)(2)(G) (1947). EM, Vol. II, Annex 8.
301United Kingdom Roundup Ultra ST Label, pp. 2, 6 (emphasis in original). EM, Vol. III, Annex
124; see also e.g. , Australia Roundup Biactive Label , p. 11 (“NOT TO BE USED FOR ANY
PURPOSE, OR IN ANY MANNER, CONTRARY TO THIS LABEL UNLESS AUTHORISED
UNDER APPROPRIATE LEGISLATION.”) (emphasis in original). EM, Vol. III, Annex 106;
Canada Roundup Original Label, p. 6, Sec. 3.6 (“NOTICE TO USER: “This pest control product
is to be used only in accordance with the directions on the label. It is an offence under Pest
Control Products Act to use this product in a way that is inconsistent with the directions on the
label. The user assumes the risk to persons or property that arises from any such use of this
product.”) (emphasis in original). EM, Vol. III, Annex 110; United States Roundup Pro Label, p.
2 (“It is a violation of Federal law to use this product in any manner inconsistent with its labeling.
This product can only be used in accordance with the Directions for Use on this label or in
separately published Monsanto Supplemental Labeling.”). EM, Vol. III, Annex 128.
135Colombian law imposes civil and criminal penalties for use of products such as
302
Roundup in a manner that is inconsistent with labelling requirements .
5.41 Because of adverse effects on human health, Roundup labels typically
state that direct exposure to the herbicide is prohibited: “DO NOT spray directly
on humans, pets, exposed food, food preparation areas or food utensils.” 303
Labels warn users to “[a]void any unnecessary contact with the product. Misuse
can lead to health problems” 304. Users of Roundup are cautioned to: “Wash
hands before eating, drinking, chewing gum, using tobacco, or using the toilet.
Remove clothing immediately if pesticide gets inside. Then wash thoroughly and
305
put on clean clothing.” Another warning provides: “Do not apply this product
in a way that will contact workers or other persons, either directly or through
306
drift. Only protected handlers may be in the area during application.”
302
Colombia Ministry of Health Decree No. 1843, op. cit., Arts. 180, 181(h), 254–264. EM, Vol.
II, Annex 11; Republic of Colombia, Institute of Agriculture, Resolution No. 3759 , Enacting
Provisions for the Registration and Control of Chemical Pesticides for Agricultural Use (16 Dec.
2003), Art. 33. EM, Vol. II, Annex 20; see also Canada, Pest Control Products Act, R.S.C. Chap.
28, Sec. 6(9) (2002). EM, Vo l. II, Annex 16 (providing for a fine of up to $500,000 or a prison
term of up to three years for use of a pesticide in violation of its label); United StateFederal
Insecticide, Fungicide and Rodenticide Act , 7 U.S.C. Sec. 136l (1947) (providing for civil and
criminal penalties for the violation of the Act’s requirements including use of herbicides
inconsistent with their label requirements). EM, Vol. II, Annex 8.
303
Australia Roundup Label, p. 14. EM, Vol. III, Annex 105.
304Germany Roundup UltraMax Label, p. 6. EM, Vol. III, Annex 118; see also Ecuador Ranger
480 Label, p. 1 (“Avoid: Inhalation or ingestion and direct contact with clothes, skin, eyes and
mouth.”) (emphasis in original). EM, Vol. III, Annex 116.
305United States Roundup Pro Label, p. 1, Sec. 3.1. EM, Vol. III, Annex 128.
306United States Roundup Pro Label , p. 2, Sec. 3.3. EM, Vol. III, Annex 128; see also Brazil
Roundup Label (hereinafter “ Brazil Roundup Label ”), available at
http://www.monsanto.com.br/roundup/roundup/roundup.asp (last visited 26 Mar. 2009) (“Do not
allow minors to work in application.”). EM, Vol. III, Annex 109.
1365.42 Labels for Roundup also caution against indirect contact. For example,
the United States label requires a waiting period before entry into a sprayed area:
“Do not enter or allow worker entry into treated areas during the restricted entry
interval (REI) of 4 hours….Keep people and pets off treated areas until spray
307
solution has dried.”
5.43 Roundup labels also require that people who might be exposed to the
spray be alerted to its dangers so that they can avoid exposure: “Aerial
application: Notify all inhabitants in the immediate vicinity of the area to be
sprayed and issue the necessary warnings.”308
5.44 Roundup labels confirm the consequences of contact with the spray:
“Hazards to Humans and Domestic Animals
Keep out of reach of children.
DANGER!
CAUSES IRREVERSIBLE EYE DAMAGE.
HARMFUL IF SWALLOWED OR INHALED.
MAY CAUSE SKIN IRRITATION.
Do not get in eyes, on skin or on clothing.
Wear goggles or face shield.
Avoid breathing vapour or spray mist. …
FIRST AID:
30United States Roundup Pro Label, p. 2, Sec. 3.3. EM, Vol. III, Annex 128.
308
South Africa Roundup Label, p. 2. EM, Vol. III, Annex 122.
137 IF IN EYES, immediately flush with plenty of water for at least 15
minutes. Get medical attention.
IF ON SKIN immediately flush with plenty of water. Remove
contaminated clothing. Wash clothing before reuse.
IF SWALLOWED, this product will cause gastrointestinal tract
irritation. … Get medical attention. …
IF INHALED, remove individual to fresh air. G309medical
attention if breathing difficulty develops.”
5.45 Other Roundup labels contain similar warnings: “KEEP OUT OF REACH
OF CHILDREN. MAY CAUSE EYE IRRITATION. HARMFUL IF
SWALLOWED. Avoid contact with eyes or prolonged contact with skin.” 310
The Ecuadorian Roundup label warns that “[e]xternal contact causes burning or
irritation of the eyes, mucous membranes, mouth or throat. If ingested, the early
symptoms can include nausea and an upset stomach” 311.
5.46 Given these health concerns, Roundup labels require substantial
protections to avoid inadvertent exposure. Ecuador’s “Ranger” label (equivalent
to Roundup) contains the following series of warning pictograms graphically
309United States Roundup Export Label, p. 1. EM, Vol. III, Annex 125.
310Canada Vision Silviculture Herbicide Label , Sec. 1.1 (emphasis in original). EM, Vol. III,
Annex 111; see also Colombia Roundup SL Label , p. 1 (“Avoid contact with eyes and skin.
Causes irritation. Upon completi on of work, change clothes and wash with plenty of soap and
water.”). EM, Vol. III, Annex 115; Germany Roundup TURBO Label, p. 30 (“Risk of serious eye
damage.”). EM, Vol. III, Annex 117; United Kingdom Glyphosa te 360 Label , p. 1
(“IRRITATING TO EYES. ... AVOID CONTACT WITH EYES. IN CASE OF CONTACT
WITH EYES, RINSE IMMEDIATELY WITH PLENTY OF WATER & SEEK MEDICAL
ADVICE.”) (emphasis in original). EM, Vol. III, Annex 123.
311
Ecuador Ranger 480 Label, p. 1. EM, Vol. III, Annex 116; see also Japan Roundup Product
Safety Data Sheet, op. cit. (“Eyes: According to toxicity tests, Roundup herbicide may cause eyes
to be painful, bloodshot, or to tear. Skin: According to toxicity tests, Roundup herbicide will
cause symptoms ranging from mild toxicity to irritation.”). EM, Vol. III, Annex 121.
138demonstrating the care with which the product must be handled to avoid harm 312.
It directs users to wear protective face shields and masks to prevent contact with
the eyes or accidental eye exposure and inhalation. It also requires full-body
protection including boots and gloves.
Figure 1. Warning Pictograms from Ecuador Ranger 480 Label.
5.47 Roundup warnings from around the world also preclude spraying in ways
that could lead to human ingestion. For example, a South African label instructs:
313
“Prevent contamination of food, feed, drinking water and eating utensils.”
Roundup product information from Japan notes that “[i]n cases in which similar
products have been ingested, there have been reports of gastrointestinal
314
discomfort, nausea, vomiting, and diarrhea, accompanied by oral irritation” .
5.48 The contamination of water bodies used by Ecuadorian border
communities for drinking, bathing and washing is also a serious concern. The
UN Special Rapporteur on the Rights of Indigenous People, Rodolfo
Stavenhagen, has observed:
312Ecuador Ranger 480 Label, p. 2. EM, Vol. III, Annex 116.
313South Africa Roundup Label , p. 4. EM, Vol. III, Annex 122; see also Ecuador Ranger 480
Label, p. 1 (“During the preparation and use of the product, DO NOT SMOKE, EAT or DRINK.
… BEFORE EATING, DRINKING or SMOKING: Remove contaminated clothes, wash exposed
skin well with plenty of water.”) (emphasis in original). EM, Vol. III, Annex 116.
314Japan Roundup Product Safety Data Sheet , op. cit. EM , Vol. III, Annex 121. The warning
continues: “In cases of oral ingestion of large volumes of similar products, there have been reports
of a drop in blood pressure and pulmonary edema.” Ibid.
139 “International studies indicate that this [spraying] practice has
negative effects on environmental resources and the health of
people and animals. Skin and other diseases, pollution of rivers
and aquifers, and other damage have been reported. … In addition,
the population often uses untreated water from the river forming
315
the border between the two countries.”
5.49 The human health risks from exposure to the spray mixture are
graphically demonstrated by Colombia’s own actions to protect those who handle
it. The CICAD Report observes that Colombia requires the workers who load the
316
spray planes to wear “[a]ppropriate protective equipment” . This safety gear
includes “[l]ong pants, long sleeves, full rubber apron, rubber gloves, cloth hat or
317
cap, particulate air filter and dark glasses, leather military-style boots” . Figure
2 depicts the protective equipment that is worn by those who load the aircraft.
The worker is equipped with goggles to protect his eyes; a long-sleeve shirt, a
plastic apron, and heavy gloves to protect his skin; and a special breathing
apparatus to prevent inhalation. The Ecuadorians exposed to the spray have none
of the protective gear that Colombia itself has deemed necessary for those persons
who are potentially exposed to it.
315 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous People, Rodolfo Stavenhagen Mission to Ecuador (25 April-4 May
2006), U.N. Doc. A/HRC/4/32/Add.2 (28 Dec. 2006), para. 28 (expressing concern regarding the
effects of aerial spraying and noting that “the population often uses untreated water from the river
forming the border between the two countries”). EM, Vol. II, Annex 30.
316CICAD Report, op. cit., p. 28. EM, Vol. III, Annex 151.
317
Ibid., pp. 37–38, Table 6. The U.S. EPA Glyphosate Reregistration Eligibility Decision
explains that contact with glyphosate products is a real concern: “In California, glyphosate ranks
high among pesticides causing illness or injury to workers, who report numerous incidents of eye
and skin irritation from splashes during mixing and loading.” Glyphosate RED, op. cit., p. 3. EM,
Vol. III, Annex 132.
140 Figure 2. Preparing the spray mixture at an air base in Colombia; protective
318
equipment worn by mixer-loaders .
5.50 This is consistent with the observations of Colombia’s Comptroller
General, who has cautioned that the people living in the Ecuador-Colombia
border region are unprotected from the effects of the spray mixture: “[i]n
situations in which people are not informed of when sprayings will occur, and,
therefore, are not properly protected, direct exposure to herbicides can be
319
expected” .
B. EFFECTS ON PLANTS AND D OMESTICATED A NIMALS
5.51 Glyphosate-based herbicides like the one sprayed by Colombia are
designed for the very purpose of killing all plants that they contact. Thus, the
manufacturer has issued strict warnings against contact with any desirable
species, re-emphasizing the need for appropriate buffer zones and other
application precautions. For example, the Australian label states:
318
CICAD Report, op. cit., p. 31. EM, Vol. III, Annex 151.
31Comptroller General Fourth Evaluation Report, op. cit., p. 36. EM, Vol. II, Annex 98.
141 “PROTECTION OF CROP, NATIVE AND OTHER NON-
TARGET PLANTS. Avoid contact with foliage, green stems,
exposed non-woody roots or fruit of crops, desirable plants and
trees, since severe injury or destruction may result. DO NOT
apply under weather conditions, or from spraying equipment, that
may cause spray to drift onto nearby susceptible plants/crops,
cropping lands, or pastures.” 320
Similarly, a Japanese label directs that “[s]erious chemical damage arises when
the chemical solution is placed in contact with crops or useful plants, so be
321
careful that they are not exposed” .
5.52 Even minute quantities of the spray can be destructive:
“Direct spray contact, or even slight drift, may cause severe injury
or destruction of a322growing crop or other desirable plants
including trees.”
5.53 Colombia’s spray mixture, which has been enhanced to penetrate the
hardy coca plant, poses an even greater danger to many non-target plants,
320Australia Roundup Biactive Label, p. 3 (emphasis in original). EM, Vol. III, Annex 10see
also Argentina Roundup Ultramax Label Recommendations , p. 2, available at
http://www.elijoroundup.com.ar/ultramax_recomendaciones.php (last visited 26 Mar. 2009) (“In
all cases, avoid spray contact with leaves, fruits and green stems of cultivated plants, directing the
application to the base of the trunk of plants older than three years, and carefully protecting plants
younger than three years.”). EM, Vol. III, Annex 104.
321 Japan Roundup Agrochemical Registration (hereinafter “ Japan Roundup Agrochemical
Registration”), Sec. 16, available at http://www.roundupjp.com/register/index.html (last visited
26 Mar. 2009). EM, Vol. III, Annex 120; see also United States Roundup Pro Label , p. 2, Sec.
5.0 (“ATTENTION. AVOID CONTACT OF HERBICIDE WITH FOLIAGE, GREEN STEMS,
EXPOSED NON-WOODY ROOTS OR FRUIT OF CROPS, DESIRABLE PLANTS AND
TREES, BECAUSE SEVERE INJURY OR DESTRUCTION MAY RESULT”) (emphasis in
original). EM, Vol. III, Annex 128.
322
Australia Roundup Biactive Label, p. 12 (emphasis in original). EM, Vol. III, Annex 106; see
also Australia Roundup Label, p. 14 (CAUTION: DO NOT allow spray to contact or drift onto
plants you do not want killed. Accidental contact must be hosed with water immediately to reduce
injury to plant.”) (emphasis in original). EM, Vol. III, Annex 105.
142including crops that are grown in Ecuador’s border communities. As the Menzie
Report describes:
“Crops that lack the thick, waxy cuticle of coca will be most
susceptible to the effects of the spray. For this reason, spray drift
associated with the program will be more toxic to plants than drift
from ‘normal’ Roundup. Because the efficacy of the spray
mixture needed to be enhanced to make it effective on coca, it
follows that many other species will be more sensitive to the
spray. These could include many of the crop species grown in
Ecuador, such as yucca, plantain, corn, and fruit trees.” 323
5.54 In addition to the direct effects of the herbicide, glyphosate can have
significant secondary effects on non-target plants, inhibiting their vitality and
productivity in the long-term:
“In addition to direct mortality to nontarget plants, there are
several ways in which spray drift may result in chronic long-term
effects, including loss of plant vigor for years following exposure.
In addition, glyphosate mixtures have been reported to result in
diminished soil productivity mediated by adverse effects on
nitrogen-fixing plants and their symbiotic fungi. Finally, evidence
indicates that glyphosate exposure weakens plants’ immunity to
324
fungal infections.”
5.55 Both immediate crop destruction and long-term declines in productivity
caused by the herbicidal spray are serious concerns in the Ecuador-Colombia
border region because so many local residents rely on their crops for basic
325
subsistence .
323Menzie Report, op. cit., Sec. 5.2.1. EM, Vol. III, Annex 158.
324
Menzie Report, op. cit., Sec. 5.2.2. EM, Vol. III, Annex 158.
325See supra Chap. II, para. 2.23;See infra Chap. VI, paras. 6.54–6.75, 6.107–6.109, 6.114–
6.119.
1435.56 The United Nations Special Rapporteur on the Adverse Effects of the
Movement and Dumping of Toxic and Dangerous Products and Wastes on the
Enjoyment of Human Rights, Mr. Okechukwu Ibeanu, has noted that crop
destruction by glyphosate-based herbicides can have a significant impact on the
local food supply. In 2007, he stated that:
“because the herbicides used cannot distinguish between drug
crops and other legitimate crops and because of the use of aircraft
to disperse the herbicide, which renders the dispersion less precise,
fumigation of coca and poppy crops can result in the destruction of
nearby 326icultural crops, thus limiting access of the population to
food” .
5.57 Just as the spray mixture can destroy agricultural crops, it poses
significant risks to domesticated animals. A U.S. label warns: “DOMESTIC
ANIMALS … ingestion of this product or large amounts of freshly sprayed
vegetation may result in temporary gastrointestinal irritation (vomiting, diarrhea,
colic, etc.).” 327The Ecuadorian Ranger (Roundup equivalent) label carries a
warning, shown at Figure 3, indicating that “Animals are not permitted in the
treated area” 328.
326
Report of the Special Rapporteur on Toxic and Dangerous Products , op. cit., p. 10, para. 20.
EM, Vol. II, Annex 32. The U.S. EPA has also expressed concern about risks to non-target plants
in the context of Colombia’s aerial spraying program, stating that “glyphosate is highly toxic to
many plants and that some level of adverse effects is likely to occur to some nontarget plants as a
result of spray drift, as can be expected with herbicide applications.” United States Environmental
Protection Agency, Office of Pesticide Programs, Letter and Consultation Report from
Administrator Leavitt (17 Nov. 2004), p. 2, available at
http://www.state.gov/p/inl/rls/rpt/aeicc/57040.htmast visited 26 Mar. 2009). EM, Vol. III,
Annex 149.
327United States Roundup Pro Label, p. 1, Sec. 3.1. EM, Vol. III, Annex 128; see also Germany
Roundup TURBO Label, p. 30 (“Keep away from food, drinks and animal feed.”). EM, Vol. III,
Annex 117.
328Ecuador Ranger 480 Label , p 2. EM, Vol. III, Annex 116; Andean Community, Resolution
630, Andean Technical Manual for the Registration and Control of Chemical Pesticides for
Agricultural Use (25 June 2002), p. 130. EM, Vol. II, Annex 17.
144 Figure 3. Andean Technical Manual Explanation of Warning Pictogram on
Ecuador Ranger 480 Label.
5.58 The Menzie Report likewise confirms that
“[e]xposure to additives that cause eye, skin, and systemic
conditions would reduce the productivity of food-producing
animals (decreased weight gain or reproductive performance). In
general, young animals are more susceptible to these types of
stress-related effects than are adults. Spraying with glyphosate-
based herbicides may also reduce the local food supply for
domesticated animals, which may lead to decreased body
condition and performance in livestock and other farm animals” 32.
C. EFFECTS ON THE E NVIRONMENT
5.59 Because glyphosate kills plants indiscriminately, the natural flora in
Ecuador are not exempt from its effects. Indeed, since the spray mixture used by
Colombia is heavily laden with surfactants, which enhance the herbicide’s
activity four-fold or more, the wild plant species that make up Ecuador’s natural
ecosystems are especially susceptible, and can be severely affected even by small
329
Menzie Report, op. cit., Executive Summary. EM, Vol. III, Annex 158.
145amounts of the spray mixture. The vulnerability of naturally occurring plants in
Ecuador is increased because many of these plants lack the woody stems and
330
waxy leaves that provide some measure of protection for coca plants .
5.60 As Colombia’s Comptroller General points out:
“The broad-spectrum herbicides used in aerial spraying are
designed to kill a wide range of plants and could destroy plant
species in danger of extinction and disrupt or destroy different
habitats. Since Colombia is one of the countries that is richest in 331
biodiversity, the threat from spraying is particularly serious.”
5.61 As described in paragraph 5.54, exposure to glyphosate can significantly
impair soil health. A study conducted by the Colombian National Police in
Colombia’s Sierra de la Macarena National Park demonstrated significant
changes in soil chemistry within a month following spray events. Notably, the
soil became more acidic and showed a significant increase in saturation of
exchangeable aluminium. This substance increased “from a level which will not
affect crops to a level that is toxic for the majority of crops” 332. At the same
time, the soil lost nutrients such as ammonium, phosphorus and calcium after the
spraying 33.
5.62 The contamination of water bodies is another significant concern.
Roundup’s label provides the straightforward warning: “Avoid direct application
330Ibid., Executive Summary. (noting that many of the native plant species in Ecuador are
expected to be much more sensitive than coca to the effects of the spray).
331Comptroller General Fourth Evaluation Report, op. cit., p. 37. EM, Vol. II, Annex 98.
332
Colombian National Police, Antinarcotics Directive, Monitoring and Evaluation of the
Spraying Operation to Eradicate Illicit Coca Crops Inside Sierra de la Macarena National Park
(Nov. 2006), pp. 14–15. EM, Vol. II, Annex 100.
333
Ibid.
146 334
to any body of water.” Such “direct application” is a real risk in the Ecuador-
Colombia border region, where the frontier itself is a system of rivers, streams
335
that feed them, and an abundance of other smaller water bodies .
5.63 Scientific studies show that Roundup is highly toxic to fish and other
aquatic species 336. This point is made in unmistakable terms by the Colombian
label for Roundup, which, as shown in Figure 4, depicts a fish with a line struck
through it 337.
Figure 4. Warning Pictogram from Colombia Roundup SL Label.
334United States Roundup Pro Label , p. 3, Sec. 7.1. EM, Vol. III, Annex 128; see also Brazil
Roundup Label, op. cit. (“Do not wash packaging or equipment in lakes, springs, rivers or other
bodies of water.”). EM, Vol. III, Annex 109; Canada Vision Silviculture Herbicide Label , Sec.
1.7 (“Avoid direct applications to any body of water. Do not contaminate water by disposal of
waste or cleaning of equipment.”). EM, Vol. III, Annex 111; Colombia Roundup SL Label, p. 1
(“Do not contaminate water sources. Do not apply to or pour surplus product directly over water
bodies.”). EM, Vol. III, Annex 115; Ecuador Ranger 480 Label, p. 1 (“Do not contaminate with
the product, its waste or empty containers: lakes, rivers, ponds, streams and other water
sources.”). EM, Vol. III, Annex 116.
335See supra Chap. II, para. 2.11.
336Rick A. Relyea, The Impact of Insecticides and Herbicides on the Biodiversity and
Productivity of Aquatic Communities , Ecological Applications, Vol. 15, No. 2 (2005), pp. 618–
627 (finding that Roundup had a significant impact on aquatic biodiversity by completely
eliminating two species of tadpoles, nearly exterminating a third species, and resulting in a 70%
decline in the species richness of tadpoles). EM, Vol. III, Annex 150; Ecuadorian Scientific
Commission Report, op. cit., pp. 96–97 (describing the toxicity of Roundup to fish species). EM,
Vol. III, Annex 157.
337
Colombia Roundup SL Label, p. 2. EM, Vol. III, Annex 115.
1475.64 Other labels confirm that Roundup is poisonous to both wild and domestic
aquatic species. The United Kingdom’s label warns: “TOXIC TO AQUATIC
ORGANISMS, MAY CAUSE LONG-TERM ADVERSE EFFECTS IN THE
338
AQUATIC ENVIRONMENT.” Similarly, the Australian label provides:
“PROTECTION OF WILDLIFE, FISH, CRUSTACEA AND ENVIRONMENT.
Do NOT contaminate dams, rivers or streams with the product or used container.
Do NOT apply to weeds growing in or over water. Do NOT spray across open
339
bodies of water.” The label specifically warns against applying Roundup to
any water body inhabited by wild or domesticated fish: “Do not apply directly to
any body of water populated with fish or used for domestic purposes. Do not use
340
in areas where adverse impact on domestic water or aquatic species is likely.”
The label also warns that small water bodies -- home to many aquatic species --
require special protection: “DO NOT allow chemical containers or spray to get
341
into drains, sewers, streams or pond.”
5.65 CICAD confirms the danger to aquatic species by spray and drift over
water bodies 34. A laboratory study conducted as a follow-up to the CICAD
338United Kingdom Glyphosate 360 Label, p. 1 (emphasis in original). EM, Vol. III, Annex 123;
see also Germany Roundup UltraMax Label, p. 6 (“Toxic to water organisms; can have long-term
toxic effects on bodies of water”). EM, Vol. III, Annex 118; Italy Roundup 450 Plus , p. 1,
available at http://www.monsanto .it/prodotti/agrofarmaci/roundup/450plus.aspast visited 26
Mar. 2009) (“harmful to aquatic organisms, it can cause negative effects for the aquatic
environment in the long term”). EM, Vol. III, Annex 119.
339Australia Roundup CT Label, p. 14 (emphasis in original). EM, Vol. III, Annex 107.
340Canada Vision Silviculture Herbicide Label , Sec. 3.2. EM, Vol. III, Annex 111; Japan
Roundup Agrochemical Registration , op. cit., Sec. 21 (“Sufficient caution is to be exercised so
that this product is not dispersed or allowed to flow into a water supply or culturing pond.”). EM,
Vol. III, Annex 120.
341Australia Roundup Label , p. 14 (emphasis in original). EM, Vol. III, Annex 105;see also
Argentina, Roundup TRANSORB Material Safety Data Sheet , p. 3, Sec. 9 (“Be sure to keep the
spill away from drains, sewers, canals, and waterways”). EM, Vol. III, Annex 103.
342CICAD Report, op. cit., p. 86 (“When the toxicity values for the mixture as used in Colombia
are compared to the range of estimated exposures that would result from a direct overspray of
148Report found that a spray mixture used by Colombia to eradicate illicit coca, at a
concentration “slightly less than worst case concentration levels”, killed over half
of the exposed tadpoles within 96 hours 34. The effects on amphibians and other
aquatic species are attributed to the surfactants in the spray mixture, and their
ability to destroy cell membranes 344. Such risks are particularly troubling
because both Ecuador and Colombia possess a unique wealth of amphibian
species; many of these species are threatened with extinction 345.
5.66 Experts confirm these hazards and suggest that the CICAD studies may
even underestimate the risks posed to amphibians by Colombia’s aerial spraying
programme:
“[Amphibians] are especially vulnerable to spray drift for three
reasons. First, frogs are especially sensitive to the toxic effects of
the chemicals in the formulation. Second, numerous frog species
in Ecuador live a primarily terrestrial existence among the
vegetation. The terrestrial environments that they inhabit would
surface waters … it is clear that aquatic animals and algae in some shallow water bodies may be at
risk.”). EM, Vol. III, Annex 151. A U.S. EPA scientist notes that “[s]tudies by Relyea, Relyea et
al. and Howe et al. suggest that formulations of glyphosate containing polyethoxylated
tallowamines are toxic to aquatic-phase amphibians and that the toxicity appears to be related to
the developmental stage of the larvae.” Ecological Effects Assessment, op. cit., p. 3. EM, Vol. III,
Annex 154.
343
United States Department of State, Report to Congress: A Preliminary Evaluation of the Risk
Posed to Colombia’s Amphibians and Threatened Species by the Government of Colombia’s U.S.-
Supported Program of Aerial Eradication of Illicit Crops (Aug. 2006), p. 4. EM, Vol. III, Annex
156.
344
The CICAD Report observes: “The effects of glyphosate on fish and other aquatic organisms
are clearly related to the surfactant in the formulation rather than the glyphosate itself. Surfactants
can disrupt cell membranes and this type of response would be expected.” CICAD Report, op. cit.,
p. 68. EM, Vol. III, Annex 151. The Report considers the risk to aquatic organisms to be
sufficiently serious that “[i]f shallow waters are routinely found close to fields, it is recommended
that other formulants be tested for purposes of selecting products that present a lower risk to
aquatic organisms,” ibid., p. 12, and notes that the mixture of glyphosate and Cosmo-Flux is even
“more toxic to aquatic organisms than formulated glyphosate alone,” ibid., p. 11.
345Menzie Report, op. cit., Sec. 5.3.3. EM, Vol. III, Annex 158; See supra Chap. II, para. 2.13.
149 receive spray drift, either directly or indirectly, from droplets that
accumulate on vegetation. Third, amphibians would be
susceptible at multiple life stages. The young tadpoles of
terrestrial frogs may live and grow in small pockets of water.
These pockets are substantially smaller than those typically
assumed for the purpose of evaluating sprayed biocides. An
adequate assessment of the risk presented to amphibians must
consider these ecological factors.” 346
5.67 Fish species are also at risk. Beyond the direct risk posed by surfactants
in the spray mixture, the chemicals used by Colombia kill aquatic plants and
algae that grow densely in fish ponds, leading to loss of oxygen and asphyxiation
347
of fish . Risks to fish species are especially troubling in Ecuador’s border
region, where the human population depends on both wild and farmed fish as an
348
essential food source .
5.68 The damage to plants, aquatic species and other components of Ecuador’s
ecosystem is of particular concern because of the ease with which relatively
minor impacts can trigger much broader effects. As experts explain, “[i]mpacts
on native plants have broad implications for biodiversity because the diverse
assemblage of rainforest plants provides habitat and food for the diverse
assemblage of animals that live there” 349. Consequently, the “loss of components
of the plant community will directly affect the components of the animal
community that rely on them” 350.
346Ibid., Executive Summary; see also ibid. Sec. 5.3.3.
347Ibid., Sec. 5.2.4.
348
See supra Chap. II, para. 2.23.
349Menzie Report, op. cit., Sec. 5.3.1. EM, Vol. III, Annex 158.
350Ibid.
1505.69 The environmental dangers posed by Colombia’s aerial spraying
programme are graphically depicted on the label for Roundup sold in the United
Kingdom, which features a dead fish lying in the front of a denuded tree, and the
351
caption: “Dangerous for the environment” .
Figure 5. Warning Pictogram from United Kingdom Glyphosate 360 Label.
5.70 The risks of significant environmental harm are underscored by the
absence of studies about the effects of Colombia’s aerial spraying programme in
tropical ecosystems. As the U.S. EPA has noted, existing studies of Roundup’s
environmental effects were conducted in temperate ecosystems, and do not
predict the herbicide’s effects in the tropical conditions of the Ecuador-Colombia
border area:
“One of these [uncertainties] is the extrapolation of North
American data to the conditions and wildlife found in Colombia.
The toxicity of a pesticide to different classes of animals and
plants can vary widely among species within an individual
ecosystem. The Agency uses the test species as surrogates for
other North American species not tested, but has little experience
with tropical flora and fauna. Similarly, laboratory and field
estimates of the environmental fate of pesticides, including
351
United Kingdom Glyphosate 360 Label, p. 1. EM, Vol. III, Annex 123.
151 potential surface-water contamination, are performed with North
American soils, hydrology and climate data.” 352
The USDA has also expressed the view that “herbicide behaviour” in tropical
ecosystems is “not easily predicted” from temperate-zone field reality:
“Real world testing of herbicides on illicit narcotic crops is
generally very difficult, besides the legal and political hurdles, due
to logistic and security factors. … Herbicide behavior (especially
environmental) is not easily predicted solely from laboratory or
temperate-zone field research, if the intended use is in the
tropics.”353
5.71 The Government of Colombia itself has acknowledged that the
environmental risks of the spraying programme have not been adequately
assessed or mitigated. In June 2003, the Colombian Environment Ministry
expressed its concern over the failure of the DNE (the National Anti-Narcotics
Agency) to adequately address the environmental risks of the aerial spraying
programme:
“Regarding the DNE’s argument on the impossibility of
conducting the environmental impact assessment during the
implementation of a program or project, this Ministry does not
share this opinion since it is a very common practice to conduct ex
post facto evaluations to determine the effects of an activity on the
environment and, based on the analysis of this evaluations,
ascertain if the foreseen impacts and environmental management
measures give optimum results and/or suggest measures to
mitigate and/or offset said impacts.” 354
352
EPA 2003 Analysis, op. cit., p. 37. EM, Vol. III, Annex 146.
353USDA Strategies for Controlling Narcotic Plant Production , op. cit., p. 4. EM, Vol. IV,
Annex 139.
354Republic of Colombia, Ministry of Environment Resolution No. 670, Whereby a Sanction is
Imposed and Other Decisions Are Made (19 June 2003), p. 6. EM, Vol. II, Annex 19; see also
supra, Chap. III, paras. 3.28–3.44.
1525.72 The Colombian Comptroller General reached the same conclusion:
“Neither the United States Government nor the Colombian
Government have presented an adequate assessment of potential
impacts on human health and ecosystems of the formulated
mixture, sprayed under conditions of direct exposure in
Colombia.” 355
Section III. Aerial Application of the Herbicidal Spray
5.73 As the preceding Sections demonstrated, glyphosate-based herbicides kill
virtually any plant they touch and are inherently hazardous to humans, animals
and the environment. Consequently, there is scientific and regulatory consensus
about the critical importance of ensuring they are applied only where intended.
Unfortunately, Colombia’s record shows that they are not. Rather, the inherent
nature of aerial spraying, the local meteorological and atmospheric conditions
along the international frontier, and the manner in which Colombia conducts its
aerial spraying programme all conspire to make dispersal of the spray into
Ecuador inevitable.
A. A ERIAL SPRAYING NHERENTLY C AUSES DRIFT
5.74 The danger of herbicide drift is a problem inherent to aerial application.
As a result, aerial spraying is strictly regulated. In fact, the European Parliament
recently prohibited aerial spraying because of the uncontrollable risk of drift onto
356
“off-target areas” . Derogation from the ban is permitted only when there is no
35Comptroller General Fourth Evaluation Report, op. cit., p. 36. EM, Vol. II, Annex 98.
356
European Parliament, Legislative Resolution of 13 January 2009 on the Council Common
Position for Adopting a Directive of the European Parliament and of the Council Establishing a
Framework for Community Action to Achieve a Sustainable Use of Pesticides , 6124/2008 – C6-
0323/2008 – 2006/0132(COD) (hereinafter “ European Union Sustainable Use Directive ”) (13
153viable alternative and strict conditions are satisfied, including a specific risk
assessment and implementation of measures to ensure no adverse human health
357
effects .
5.75 Colombia itself recognizes that aerial spraying is dangerous because of the
spray’s propensity to drift. The Colombian Ministry of Health requires pilots
spraying herbicide to, at a minimum:
“a) Carry out the application taking into account the conditions of
wind speed, temperature and relative humidity, and velocity and
altitude of the flight, in accord with what has been established by
the respective authorities of the agricultural sector and the civil
aviation agency;
b) Carry out the application within a fixed area;
c) Do not fly over populations, aqueducts, schools and other places
which represent a risk to human, animal, and plant health;
d) Do not apply pesticides to homes within the fields to be treated,
protecte358ater bodies, natural parks, reserves or other protected
areas.”
5.76 Because of the ever-present danger of drift, labels for glyphosate-based
products direct that they should be used only with great caution. For instance, the
United States label instructs users to “AVOID DRIFT. EXTREME CARE
Jan. 2009), Art. 9.1 (“Member States shall ensure that aerial spraying is prohibited.”). EM, Vol.
II, Annex 21.
357Ibid., Art. 9.2. Further, aerial spraying is prohibited “in close proximity to residential areas”,
and in the limited circumstances where it is allowed, approving authorities must specify measures
for “warning residents and bystanders in due time and to protect the environment in the vicinity of
the area sprayed”. Ibid., Arts. 9.2(e), 9.3. The regulations also provide that the authorities “shall
make available to the public the relevant information contained [in approvals for aerial spraying]
such as the area to be sprayed, the provisional day and time of the spraying and the type of
pesticide, in accordance with the applicable national or Community law.” Ibid., Art. 9.5.
358Colombia Ministry of Health Decree No. 1843, op. cit., Art. 102. EM, Vol. II, Annex 11.
154MUST BE USED WHEN APPLYING THIS PRODUCT TO PREVENT
INJURY TO DESIRABLE PLANTS AND CROPS.” 359
5.77 Lest users underestimate the danger presented by drift, the label states:
“NOTE: Use of this product in any manner not consistent with this label may
result in injury to persons, animals or crops, or have other unintended
consequences.” 360
5.78 The inherent risk of drift has compelled the manufacturer to prohibit aerial
spraying in certain contexts. For example, an Australian label bars its use in
areas where crops are already established:
“Aerial equipment may be used to apply Roundup Biactive only in
pasture or fallow situations prior to establishment of field crops,
fodder crops, or new pasture, and for pre-harvest application to
cotton and sorghum crops. DO NOT use in intensive horticultural
cropping areas.” 361
5.79 Even when aerial application is not forbidden, the label obligates users to
minimize the likelihood and extent of drift. A United States Roundup label
mandates that: “Avoiding spray drift at the application site is the responsibility of
362
the applicator.” The label thus warns that the “interaction of many equipment-
and weather-related factors determines the potential for spray drift” and that the
359
United States Roundup Pro Label , p. 2, Sec. 5.0 (emphasis in original). EM, Vol. III, Annex
128.
360United States Roundup Pro Label , p. 2, Sec. 5.0 (emphasis in original). EM, Vol. III, Annex
128; see also e.g., Australia Roundup PowerMAX Label, p. 15 (“AVOID DRIFT. DO NOT apply
treatments with spraying equipment or under weather conditions which are likely to cause spray
drift onto nearby susceptible crops, pastures or other sensitive plants.”) (emphasis in original).
EM, Vol. III, Annex 108.
361Australia Roundup Biactive Label, p. 13 (emphasis in original). EM, Vol. III, Annex 106.
362United States Roundup Pro Label, p. 3, Sec. 7.1. EM, Vol. III, Annex 128.
155“applicator and the grower are/is responsible for considering all these factors
363
when making decisions.”
5.80 Since drift cannot be eliminated, labels for glyphosate-based products
caution against aerially applying them in areas near sensitive habitats (like
Ecuador’s border with Colombia.) The reason is simple: the risk of drift is too
great. For example, one label states:
“Sensitive Areas. The product should only be applied when the
potential for drift to adjacent sensitive areas (e.g., residential areas,
bodies of water, known habitat for threatened or endangered
species, non-target crops) is minimal (e.g., when wind is blowing
away from the sensitive areas). Avoid direct application to any
body of water.” 364
5.81 For the same reason, labels for Roundup require there to be a buffer zone
surrounding the targeted area. One label instructs that “APPROPRIATE
BUFFER ZONES MUST BE MAINTAINED” in order to “PREVENT INJURY
365
TO ADJACENT DESIRABLE VEGETATION.”
5.82 Indeed, Colombia’s own Environment Ministry has called for buffer
zones of at least 2 kilometres to minimize the spraying programme’s danger to
363Ibid.
364United States Roundup Original Label, p. 4, Sec. 7.1. EM, Vol. III, Annex 127.
365
United States Roundup Export Label, p. 7 (emphasis in original). EM, Vol. III, Annex 125; see
also Canada Vision Silviculture Herbicide Label , Sec. 3.2 (“Drift may cause damage to any
vegetation contacted for which treatment is not intended. Applications in wind conditions in
excess of local and/or provincial aerial spray regulations are not recommended. To prevent injury
to adjacent vegetation, appropriate buffer zones must be maintained.”). EM, Vol. III, Annex 111
156 366
sensitive areas, including zones of human habitation and national parks .
367
Unfortunately, its call has gone unheeded .
5.83 The strict regulatory measures described above have been adopted for
good reason. Herbicides released from airplanes can drift for many kilometres.
As the Menzie Report explains, agricultural studies conducted in the United
States have “shown that pesticides delivered through aerial spraying can be
transported miles in the drift … spray drift may extend as far as four to ten miles
[six to sixteen kilometres]” 368. Other studies show that drift leaving the target
area can represent a substantial portion of the herbicide applied 369.
366
Colombia Ministry of Environment Resolution 1065 , op. cit. , Art. 5(d) (“This Ministry
considers that the buffer zones proposed in the study submitted by the DNE should be adjusted
according to the Ministry’s requirement, since those suggested by DNE do not guarantee safety
with respect to the need to protect and preserve the areas described. These should be adopted
immediately by PECIG and verified in the field by the Technical Audit. Hence, the buffer zones
have been established according to the following table: … Areas of the zones belonging to
SNPNN* [Colombia’s National Park System]. Do not spray within them. Spray outside the area
with a minimum buffer zone of 2000 meters. … Human settlements: hamlets, checkpoints,
shelters, urban areas. Do not spray within them. Spray outside the area with a minimum buffer
zone of 2000 meters.”). EM, Vol. II, Annex 15.
367
See supra Chap. III, paras. 3.14–3.16, 3.20–3.21, 3.24–3.26. Even beyond buffer zones,
Colombia’s Environment Ministry has demanded that measures other than aerial fumigation be
employed to eradicate coca in populated areas: “In the case of populated areas, areas with social
infrastructure and/or water supply areas, the National Antinarcotics Agency - DNE, shall define
and implement, in an immediate fashion, alternative methods for the eradication of illicit crops, so
as to guarantee the protection of the social and natural environment, effective immediately.”
Republic of Colombia, Ministry of Environment, Resolution No. 341, Adopting Some Decisions in
Relation to the Program for the Eradication of Illicit Crops by Aerial Spraying with Glyphosate
(2001), Art. 4. EM, Vol. II, Annex 14.
368
Menzie Report, op. cit., Sec. 4. EM, Vol. III, Annex 158.
369Ibid.
157 B. LOCAL M ETEOROLOGICAL AND A TMOSPHERIC CONDITIONS INCREASE
DRIFT
5.84 Not only is drift an inherent problem with aerial application, but the local
meteorological and atmospheric conditions along the Ecuador-Colombia border
are especially conducive to drift. When combined with the manner in which
Colombia releases the spray, long-distance drift is inevitable.
5.85 Weather plays an important role in determining the extent of drift. The
United States label confirms the centrality of weather:
“[t]he likelihood of injury occurring from the use of this product
increases when winds are gusty, as wind velocity increases, when
wind direction is constantly changing, or when there are other
meteorological conditions that favor spray drift. When spraying,
avoid combinations of pressure and nozzle type that will result in
splatter or fine particles (mist) that are likely to.drift”
5.86 The weather patterns and atmospheric conditions along Ecuador’s
international frontier increase the likelihood that Colombia’s spray will enter its
territory. First and foremost, this is a function of the local wind conditions. As
the Menzie Report explains, both wind direction and velocity are important
contributors to drift, and localized circulation patterns can increase the risk of off-
target deposition. Small patches of cleared land surrounded by rainforest trees
are particularly at risk of generating the types of local meteorological conditions
370
United States Roundup Pro Label, p. 2, Sec. 5.0. EM, Vol. III, Annex 128.
158that favour spray drift 371. These are precisely the types of fields that Colombia
targets for coca eradication in areas immediately adjacent to Ecuador 37.
5.87 Compounding this problem is the fact that Colombia’s aerial spraying
frequently occurs in mountainous terrain. As the Menzie Report explains, the
heating and cooling of mountain slopes can generate wind patterns that “can carry
spray drift long distances -- longer than what is typically encountered in ‘flat
373
land’ agricultural situations” .
5.88 The propensity for long-distance drift is increased because Colombia’s
spraying near the Ecuador border occurs over or near rivers. Temperature
differences between the air over a river and the adjacent land affects circulation
patterns, carrying spray up or down river and depositing it far from the point of
release 374. Because the Ecuador-Colombia border is a network of rivers, this
phenomenon exacerbates the already high likelihood that significant amounts of
Colombia’s toxic herbicide will be deposited in Ecuador 375.
5.89 The problem of drift into Ecuador is further aggravated by the prevailing
high temperatures along the border, which make the spray more prone to form
371Menzie Report, op. cit., Sec. 4.4.2. EM, Vol. III, Annex 158.
372Chemicals Used, op. cit., p. 3. EM (“[c]oca is often grown in monocrop fields cut out of the
triple canopy rainforest of the Amazon Basin”). EM, Vol. III, Annex 144. Such wind conditions
are highly local and change rapidly, even in a single location, making them hard to measure.
Menzie Report, op. cit., Sec. 4.4.3. EM, Vol. III, Annex 158. Thus, wind speeds measured “at the
airport” according to Colombia’s protocol, Chemicals Used, op. cit., p. 3. EM, Vol. III, Annex
144, do not necessarily represent acceptable wind speeds at spray locations. Menzie Report, op.
cit., Sec. 4.4.3. EM, Vol. III, Annex 158.
373
Menzie Report, op. cit., Sec. 4.4.2. EM, Vol. III, Annex 158.
374Ibid., Sec. 4.4.2.
375
See supra Chap. II, para 2.11.
159small droplets that will be carried away by the wind. These shrunken droplets are
376
also more concentrated, increasing their toxicity
5.90 The presence of frequent “thermal inversions” along the international
frontier is another meteorological condition that increases spray drift into
Ecuador. During a thermal inversion, warmer air is positioned above cooler air
with little vertical mixing. As a result, the spray particles become trapped
between the two layers of air, causing high concentrations of spray droplets to be
deposited downwind. Experts explain that “[t]hermal inversions are common in
the tropics and are expected to be a frequent occurrence in the Ecuador/Colombia
border region”37.
C. COLOMBIA SPRAYS THE HERBICIDE IN A M ANNER THAT INCREASES DRIFT
5.91 Because the local conditions along the international border make the risk
of drift especially high, it is incumbent upon Colombia to proceed cautiously.
Regrettably, Colombia has done the opposite. Instead, it has ensured that its toxic
spray will drift into Ecuador by releasing it from excessive heights and at
excessive speeds.
5.92 First, Colombia has virtually guaranteed that the spray will drift long
distances by releasing it from heights far above which it can safely be released.
The Colombia Roundup label sets the height for aerial application at 2 metres
above the target crop; it explicitly warns that “[h]igher altitudes increase the risk
376
Menzie Report, op. cit., Sec. 4.4.4. EM, Vol. III, Annex 158.
37Ibid, Sec. 4.4.1.
160of drift” 37. Colombia, however, authorizes planes to release the spray mixture at
heights of up to 50 metres, i.e., twenty-five times higher than instructed 379.
5.93 Indeed, Colombia allows the planes to release the spray even higher when
380
the pilots unilaterally decide that doing so will help them avoid obstacles . In
that regard, coca crops are often grown in small clearings cut from the rainforest;
as a result, towering trees frequently impede a plane’s flight-path over a coca
field, thereby forcing the pilot to release his toxic cargo significantly higher than
381
otherwise directed . In addition, coca growers employ tactics that force pilots to
fly at heights far in excess of their titular “operating parameters”. According to
the Colombian Ministry of the Environment:
“[I]llicit crop growers use a number of strategies to prevent areas
where coca is planted from being sprayed. These include …
fixing wires between trees in order to try and get the fumigation
aircraft to overturn when it descends, and having extremely high
isolated trees on plots to make it more difficult for spraying
382
aircraft to manoeuvre.”
378Colombia Roundup SL Label, p. 2. EM, Vol. III, Annex 115.
379
Republic of Colombia, Environmental Management Plan for the Illicit Crop Eradication
Program Using Aerial Spraying with the Herbicide Glyphosate (ICEPG), (2003), p. 2, available
at http://www.state.gov/p/inl/rls/rpt/aeicc/27399.htmlast visited 2 Apr. 2009). EM, Vol. II,
Annex 95.
380
Ibid.
381
Chemicals Used, op. cit., p. 3. EM, Vol. III, Annex 144; Menzie Report, op. cit., Sec. 4.2.
EM, Vol. III, Annex 158.
382Republic of Colombia, Ministry of the Environment, Resolution No. 1054 , Whereby an
Environmental Management Plan is Modified and Other Decisions are Made (30 Sep. 2003), p. 2,
available at http://www.state.gov/p/inl/rls/rpt/aeicc/27412.htmlast visited 13 Apr. 2009). EM,
Vol. IV, Annex 245.
1615.94 Further, in many places the coca fields are located in uneven terrain,
which compels the planes to ascend higher still 383.
5.95 Making matters even worse, fear of hostile ground-fire from narco-
traffickers protecting their illicit crops causes pilots to fly above the otherwise
mandated altitude. As described by a U.S. State Department report, “spray planes
384
are under continual risk from hostile ground fire” . (The spray planes are flown
by private pilots hired by DynCorp International, the for-profit United States
government contractor that carries out aerial eradication operations for the
Government of Colombia 385. It is these non-Colombian pilots who ultimately
control the timing and release of the spray 386).
383Menzie Report, op. cit., Sec. 4.1 (“In actual application, the release, or boom, height is likely to
be highly variable due to the conditions that occur along the Colombia/Ecuador border, including
complex topography that includes hills, valleys, gulleys, and forest canopy of varying height.”).
EM, Vol. III, Annex 158.
384Chemicals Used, op. cit., p. 4. EM, Vol. III, Annex 144.
385
The United States Government funding pays for equipment such as spray planes and
helicopters, the chemicals used, and the DynCorp pilots who carry out the program. As described
by DynCorp itself, a major component of its business involves providing “critical support to
military and civilian government institutions.” The company “provides extensive specialty
aviation support for the U.S. government’s programs to reduce the flow of illicit drugs from
foreign sources,” including in Colombia. DynCorp International, available at http://www.dyn-
intl.com/ (last visited 14 Apr. 2009).
386CICAD Report, op. cit., p. 30 (noting that while flight paths are planned in advance, “the actual
spraying is controlled by the pilots”). EM, Vol. III, Annex 151; see also Menzie Report, op. cit.,
Sec. 4.2 (“The extent of off-target spray drift is also influenced by the pilot’s actions. Timing of
spray release is controlled by the pilot. Spray is initiated and terminated at the pilot’s discretion,
depending on his/her judgment regarding the airplane’s trajectory, elevation, speed, and wind
direction and speed.”). EM, Vol. III, Annex 158.
The evidence indicates that DynCorp pilots often misapply the spray. U.S. State Department has
reported that “occasional errors are unavoidable.” Chemicals Used, op. cit., p. 4. EM, Vol. III,
Annex 144. The CICAD Report also acknowledges that spray can be deposited off-target by
“incorrect application where the spray pilot initiates application too soon or turns off the spray too
late, or the spray swath includes a non-target area on one or both sides of the target field.”
CICAD Report, op. cit., p. 32. EM, Vol. III, Annex 151. As the Menzie Report explains, images
1625.96 The excessive speeds at which the planes fly also contribute to the spray’s
drift into Ecuador. According to the U.S. State Department, the planes fly at 165
miles per hour (266 kilometres per hour) 387. As fast as that is, the planes actually
fly much faster. The USDA reviewed flight data from a sampling of 159 spray
missions and found that 118 (72 percent) had flown faster than the State
Department’s assumed 165 miles per hour. Indeed, no fewer than 62 missions
(38 percent) had flown at speeds in excess of 200 miles per hour 388.
5.97 Flying too fast is a critical contributor to drift. The turbulence created by
high plane speed causes “spray droplets to break apart, and these smaller, lighter
droplets have a potential to be carried further by wind currents” 389. It is for that
reason that the United States label for Roundup directs users to “AVOID
APPLYING AT EXCESSIVE SPEED OR PRESSURE” 390.
5.98 Given the propensity for Colombia’s spray to drift across the international
frontier marking its boundary with Ecuador, it is incumbent on Colombia to
evaluate its aerial spraying programme and determine the extent of drift and the
damage it has inflicted. However, CICAD reported in 2006, six years after
Colombia began spraying in earnest in the border region, that spray drift “has not
been measured under conditions of use in Colombia” 39. And the Government of
produced by the UNODC show that “[s]praying continued as [the pilots] exited the field and
passed again over the forest.” Menzie Report, op. cit., Sec. 4.2. EM, Vol. III, Annex 158.
387
Updated Report on Chemicals Used, op. cit., p. 3. EM, Vol. III, Annex 148.
388USDA 2001 Verification Mission Trip Report, pp. 12–19. EM, Vol. III, Annex 140.
389
Menzie Report, op. cit., Sec. 4.1. EM, Vol. III, Annex 158.
390
United States Roundup Pro Label, p. 2, Sec. 5.0 (emphasis in original). EM, Vol. III, Annex
128.
391CICAD Interim Report, op. cit., p. 1. EM, Vol. IV, Annex 155; see also CICAD Second Phase
Assessment, op. cit., p. 1. EM, Vol. IV, Annex 159.
163Colombia itself has conceded that it does not know how far the spray drift
extends. According to Colombia’s Comptroller General:
“This drift effect is the result of the combination of different
technical and meteorological variables that make this strategy
highly susceptible to error. Factors like the height of spraying, the
velocity and direction of the wind and the relative humidity are
difficult to control, which affects the precision of the
392
sprayings.”
5.99 The concerns of Colombia’s Comptroller General have been borne out.
As described in Section IV below, many Colombians who live near the border
with Ecuador have literally felt the herbicidal spray land on their exposed skin.
They have suffered skin and eye irritation, and gastrointestinal distress, including
severe stomach pain, vomiting and diarrhea, all as predicted by the scientific
studies of the known components of the spray and the warnings on the product
labels. They have also lost crops and livestock as a result of the aerial spraying
near their homes and farms. And they have had their sources of potable water
contaminated by the spray, leading to further adverse health consequences for
themselves and their domestic animals. Chapter VI describes how the same
effects have been experienced across the border in Ecuador.
Section IV. The Harms Caused by Colombia’s Aerial Spraying of Toxic
Herbicides Inside Colombia
5.100 The dangers presented by Colombia’s herbicidal mixture are confirmed by
the domestic experience of Colombia itself. As described in Chapter II,
beginning in the 1990s and continuing now, massive aerial fumigations have been
392Comptroller General of the Republic of Colombia, Comptroller for the EnvironSpecial
Audit Regarding Illicit Crop Eradication Policies(July 2001), p. 34. EM, Vol. II, Annex 93.
164and still are being carried out across the length and breadth of Colombian
393
territory . From the beginning, reports of harm to people, to crops and to
394
animals have poured in from throughout the country .
5.101 Ecuador, of course, is not before the Court to press claims on behalf of the
people of Colombia. The harms inflicted in Colombia nonetheless merit the
Court’s attention because they constitute proof of the impacts of the spray
mixture Colombia employs. As the Court will read in Chapter VI, the injuries
reported in Colombia are similar to the harms suffered in Ecuador. As such, the
impacts of the spraying programme in Colombia confirm the causal relationship
between Colombia’s aerial fumigations and the harms inflicted on people, plants,
animals and the environment in Ecuador.
5.102 Some of the most compelling information concerning harms suffered in
Colombia comes from organs of the Colombian government itself. Following
sprayings between 22 December 2000 and 2 February 2001 in Putumayo
Province, for example, the Putumayo Department of Health (“DASALUD” per
the Spanish abbreviation) conducted an investigation into the effects of the
fumigations on the health of the local people 395. After interviews with many area
public health officials and residents, the DASALUD report observed:
“The Orito Hospital reports a notable increase in consultations for
problems related to allergic reactions of the skin, such as:
dermatitis, impetigo, abscesses, abdominal pain, diarrhea, acute
393
See, supra Chap. III, Sec. II. “Colombia’s Aerial Sprayings”.
394See, e.g., supra Chap. II, paras. 2.44-2.49.
395Republic of Colombia, Administrative Department of Health (DASALUD) Putumayo
Province, Office of Planning, Epidemiology Section, Effects of Aerial Spraying with Glyphosate
Valle del Guamuez – San Miguel – Orito, Putumayo (hereinafter “DASALUD Putumayo Health
Study”), (Feb. 2001). EM, Vol. II, Annex 90.
165 respiratory infection, which appeared from the time of the
fumigation carried out in the rural areas of the municipality.
According to information from the Administrator of the La Dorada
Health Center in the municipality of San Miguel, in the town of
Agua Clara the poisoning of people exposed to the fumigations
was apparent, with symptomology related to skin and eye
irritation, nausea, and acute respiratory infection, as well as
bronchitis, flu, colds, and abdominal pain, among others, which
corresponds to the findings of epidemiological studies carried out
in other places.
This coincides with the similar observations of medical personnel
of the Hospitals of Orito, La Hormiga (Valle del Guamuez), and la
Dorada (San Miguel) regarding the fact that, from the start of the
fumigations, a notable increase in consultations related to
problems of skin reactions, abscesses, impetigo, gastrointestinal
infections (abdominal pain, diarrhea, nausea, vomiting),
respiratory infections (bronchitis, asthma), and conjunctivitis was
observed.
The people who consulted their doctors attributed this
symptomology to the spraying received from the planes aimed at
the fumigation of illicit crops. However, not all of the people who
were affected by the fumigation went to health centers, due to lack
of economic resources or the erroneous perception that the method
by which the hea396 problems were to be treated was
experimental.”
5.103 Among the report’s more striking findings was the increase in visits to the
Sacred Heart Hospital in La Hormiga (less than 20 kilometres north of the
Ecuador border) in February 2001, after the sprayings, as compared to February
2000. Complaints of acute respiratory infection increased 100%, diarrhea 475%,
dermatitis 2300%, skin infections an even more remarkable 4600% 397.
396Ibid., pp. 1-2.
397
Ibid., p. 13 (Table).
1665.104 The DASALUD report also observed substantial negative effects on
plants and animals. Speaking about the situation in the municipality of Valle de
Guamuez, the report stated:
“Regarding the other damages produced by the fumigation,
according to the Local Ombudsman’s Office, it can be observed
that of the total number of hectares affected (7,252), the pastures
(grazing areas for livestock) were the areas most affected, with
39% (2,850 hectares), followed by plantain crops (12,6%) and in
third place, coca crops with 11% (854 hectares).
…
The high percentage of fish affected is worrying (72.3%), as is the
case of poultry (hens, roosters, ducks) (21.5%), among the total
number of animals that died as a result of the illicit crop
eradication program (178,377), a situation which, added to the
fumigation of subsistence crops, constitutes a high398sk factor for
the food security of the inhabitants of this region” .
5.105 Harms were widespread throughout the municipality. The report stated:
“Of the 100 towns in Valle del Guamuez, the municipality with
the largest number of inhabitants in the province, after Puerto Asis
and Orito, with 35,288 inhabitants; residents of 67 towns were
affected by the fumigation in terms of the state of their health,
399
crops, and environment.”
5.106 Other organs of the Colombian government have made similar findings.
Following the 2000-2001 fumigations, Colombia’s Office of the Ombudsman
conducted a site visit to affected areas of Putumayo between 15 and 25 January
2001, during which it spoke with local authorities, met with affected people and
398Ibid., pp. 15-16.
399
Ibid., p. 3.
167communities, and reviewed documentary evidence 40. Based on its investigation,
the Ombudsman’s Office issued a report stating that the impacts of the
fumigations included the following:
“An increase in deforestation in the Putumayan piedmont. Greater
effects of necrosis and death are observed, leaving a desolate
panorama over vast areas of territory.
Indiscriminate destruction of the little remaining forest, of
subsistence crops and medicinal plants, as well as of pastures and
fish-farming ponds, among others.
Migration of wild animals, principally birds, reptiles and
amphibians, caused by the fragmentation of the forests. Also,
complaints have been received regarding the deaths of some birds,
a fact which could not be corroborated in the field work carried
out…
Damage to dietary conditions of the inhabitants of the region. As
has previously been mentioned, aerial spraying indiscriminately
affected illicit crops, subsistence crops (yucca, cane, pida,
chontaduro, plantain, rice, maize, vota, borojó and oranges,
avocados, beans, zapote, and papaya), medicinal plants
(Principally yagé, sábila, descansel, mata ratón, paico,
yerbabuena), pastures, fish-farming ponds, chicken coops, the
health of campesinos and indigenous peoples and, in general,
disturbed the economy of the region. The Office of the
Ombudsman, in some cases, could observe damages in sites
located more than 150 metres from coca plantations…
Phenomena of displacement to other areas in the same
municipality or to other provinces, including, in a highly striking
manner, to Ecuador...
Harm to the health of people. Complaints regarding health effects
are related to gastrointestinal problems, skin problems, headaches
and nausea, as the more common complaints. Several cases
400Republic of Colombia, Office of the Ombudsman, Ombudsman Report No. 1, Fumigations and
Alternative Development Projects in Putumayo (hereinafter “Colombia Ombudsman Report No.
1”), (9 Feb. 2001), pp. 9-10. EM, Vol. II, Annex 91.
168 diagnosed under the profile of ‘exo401ous poisoning’ have been
attended to at Hormiga Hospital” .
5.107 In light of these findings, the Office of the Ombudsman issued a formal
resolution recommending that the National Narcotics Council (CNE)
“within 48 hours following the issuance of this Resolution, meet
and order the immediate suspension of the fumigation of illegal
crops in the Department of Putumayo and in any other area of the
country…” 402
The CNE did not, however, heed the Office of the Ombudsman’s
recommendation, and fumigations continued.
5.108 In 2003, the Colombian government considered extending fumigations to
the Province of Caldas in the west of the country. The Office of the Ombudsman
again issued a resolution in which it called on the Colombian government to
refrain from conducting sprayings in Caldas. In so doing, it noted the failure of
the government to implement an epidemiological monitoring plan to monitor the
health effects of the sprayings. The report stated:
“In different documents from the Ombudsman’s Office the
Entity’s concern regarding health impacts caused by the use of
chemicals in the aerial fumigations has been presented in a
detailed manner. The Office of the Ombudsman has also
repeatedly required competent authorities to put into place an
Epidemiological Monitoring Plan (PVE), ordered by three Health
Ministries (1984, 1992, and 1994). Without the execution of the
aforementioned plan it is impossible to affirm or negate the
harmlessness of the substances used in the PECIG [Program to
Eradicate Illicit Crops by Aerial Spraying of the Herbicide
Glyphosate] in a technical and scientific manner. …
401
Colombia Ombudsman Report No. 1, op. cit., pp. 10-12. EM, Vol. II, Annex 91.
402Republic of Colombia, Office of the Ombudsman, Ombudsman Resolution No. 4, On the
Impact of Fumigations on 11 Alternative Development Projects in Putumayo (12 Feb. 2001), p. 5.
EM, Vol. II, Annex 92.
169 The absence of said plan prevents the existence of measures and
procedures directed towards the prevention, control, and
monitoring of the risk factors to health, as provided for in various
legal standards, among them the Health Code and the Decree
which regulates the use, management and disposal of pesticides.
To this concern the following considerations are added: (1) the
growing number of complaints filed in the sprayed areas which
cite effects to the respiratory and digestive pathways, and to the
organs of sight, as well as skin illnesses, among others; (2) the
results of the study carried out by the American Environmental
Protection Agency (EPA) in which it was recognized that
Glyphosate leaves residual effects in surface waters and affects the
ocular system; (3) the inadequate provision of aqueduct and
irrigation services, which makes it necessary for inhabitants of
rural areas to turn to still and running bodies of water for
consumption use, a situation which does not guarantee the
potability of the liquid, and even less in cases in which the water is
contaminated because of the use of the chemicals employed in the
fumigations; (4) the nutritional defects confronted by rural
inhabitants, either because their income for acquiring the
minimum provisions of their typical diet has been reduced or
because of limitations on ensuring food security, and (4) [ sic] the
limitations suffered by the health sector, which manifests itself in
facts such as the decrease in illness prevention and control
programs, the lack of laboratories for analysis, the precarious
situations of the infrastructure, as well as the attacks against the
medical mission.” 403
5.109 More recently, in April 2008, a team of Colombian NGOs carried out an
observation mission to southern Putumayo to investigate the human rights
situation in the area. Among the chief causes of concern were the effects of the
fumigations. According to the mission’s report:
“Since 2000, Putumayo has been the focal point for aerial
fumigations with a mixture of glyphosate and other compounds.
403
Republic of Colombia, Office of the Ombudsman, Ombudsman Resolution No. 28, The Coffee
Crisis and the Possible Fumigations in the Province of Caldas(21 May 2003), pp. 23-25
(footnotes removed). EM, Vol. II, Annex 97.
170 The farms of many families have been fumigated between six and
eight times in a systematic manner, making any crop impossible to
sustain in the medium-term. Because of the fumigations, the air
and water have been contaminated with glyphosate, affecting the
natural ecosystem, which benefits the environment of the entire
country; the crops which guarantee the subsistence and dietary
security of the population; and the health of all of the inhabitants
of Putumayo (coca-growers and non-coca growers). In addition,
the indigenous authorities of the reserves and towns which form
the Permanent Working Group of the Cofán People expressed their
concern to us because traditional medicines have lost their
efficacy, in that the plants have all been killed. This has an
additional effect on the culture of the indigenous people in terms
of the relationship they maintain with their land…
In this regard, it is also worth noting the generalized situation of
poverty among the families of the San Miguel municipality (towns
of San Carlos and Puerto El Sol), the Valle del Guamuez
municipality, and the rural area of Puerto Asis. On 2 August 2007,
56 people belonging to the indigenous town of Villanueva of the
Orito municipality were admitted to the local Orito Hospital with
symptoms of poisoning, the majority of whom were children and
pregnant women. All of the people reported the fumigations that
affected fields, homes and the school of the Cofán indigenous
group as the cause, in a case which reached the national media.” 404
5.110 Many other Colombian government and NGO reports could be cited to
like effect. As noted, however, the point of this discussion is not to establish a
claim for damages inflicted in Colombia but to demonstrate the recognized
toxicity of the sprayings and their harmful impacts on the people, plants and
animals that have been subjected to them in both countries. Ecuador will
therefore not burden the Court by engaging in an extended review of these
sources (which by itself could consume many pages).
404Marcella Ceballos & Carlos Duarte, Report of the Observation Mission on the Human Rights
Situation in Lower Putumayo (June 2008), pp. 15-16. EM, Vol. IV, Annex 171.
1715.111 The gravity of the harms that have been inflicted emerges not only from
Colombian governmental and NGO reports, but also from the testimonies of the
people directly effected. Colombia Witness 3, for instance, is a mother of five
originally from Puerto Asis in southern Putumayo, approximately 18 kilometres
from the Ecuador border. As a consequence of the fumigations, she left
Colombia and relocated to Lago Agrio, the capital of Ecuador’s Sucumbíos
Province. She testified about fumigations near her home the afternoon of
Christmas Day 2006, during which she and her family remained indoors:
“On 26 December, at six in the morning, we went to get water
from a natural spring near the house, we drink and cook with that
water; my husband had brought that water in a bottle and when I
went to get it, foam came out, as if it had soap. I drank that water;
it did not taste normal, like everyday water; about five minutes
after I drank this water, I felt a sharp pain in my stomach. Since I
had not had anything else to drink or eat, I told my husband that
the water had made me sick. Still, with that water we prepared
aguapanela which is a traditional beverage: we boil the water with
the panela and we have it for breakfast with rice and egg; my
daughters told me that the aguapanela tasted strange. I kept
feeling a sharp pain in stomach.
I sent four of my daughters to wash clothes in the spring which is
near our house. I stayed home with my two-month-old
granddaughter. They returned immediately saying that they could
not do the washing there because the water was oily and that they
were going to La Guisia River, which is about 15 minutes from my
house.
As time passed, I felt more sickly. Around ten in the morning, I
began vomiting and having diarrhea, the two symptoms at the
same time. I could not stop, it was one after the other, I also had a
strong headache and felt faint all over, I could barely stand up. I
went to bathe at a nearby creek and a friend found me lying there,
they took me home and they could not control the vomiting and
diarrhea.
My husband went looking for our daughters at the river so that
they could help me, when he ran into them, they were bringing
172 back my youngest daughter, who at that time was six years old.
She was sick with same symptoms as me, vomiting, diarrhea and a
headache. At the same time, my 14-year-old daughter also fell ill
with the same symptoms. Shortly afterward, my 16-year-old
daughter also felt sick with vomiting, headache and diarrhea. My
18-year-old daughter and her three-month-old daughter, whom I
was looking after, also became sick. Finally, my husband also fell
ill, with vomiting and diarrhea.
…
The spraying ruined the subsistence crops that we had, maize, 405
yucca, plantain, rice and sugar cane, the chickens also died.”
5.112 Colombia Witness 9 is a primary school teacher in San Marcelino, a small
community in southern Putumayo lying along the banks of the San Miguel River,
which constitutes the border with Ecuador. She testified:
“During the spraying in 2002, the planes passed over the school
and the breeze carried the poison towards us, it looked like a cloud
that fell slowly and landed on the leaves of the plants, which took
on an oily shine. The children were in class, inside the school. At
that time I was in charge of 15 preschool children. Once they
heard the planes they ran outside to see them. I stopped the
children under my care, but those in the other grades went outside,
and the poison fell on them. After that, they were all sent home.
Poison fell on the school, the playing fields, and the garden, which
we could not recover; nothing grew, the plantains turned spotted,
and when peeled showed black dots inside. The area around the
school turned dry and yellow.
During the following week, many children missed school. The
children in my care became ill, for example, with diarrhea and
405
Declaration of Colombia Witness 3, 20 Feb. 2009. EM, Vol. IV, Annex 227. Ecuador refers
to all witness affidavits in this Memorial by witness number, rather than by name of the witnesses.
Witness names have been redacted from the affidavits included as Annexes to the Memorial at the
request of the witnesses for their protection. Ecuador has separately submitted to the Court, under
seal, a full set of unredacted witness statements, as well as a table correlating the witnesses to the
annex numbers used in the Memorial.
173 fevers, and it seemed like they had drunk poisoned water. The
other children, those who were openly exposed to the poison,
initially suffered from headaches, and later rashes and skin bumps
began to appear all over their bodies. They scratched a lot, so
much that they gave themselves sores from so much scratching.
We knew at the time of the case of one dead child, who according
to his father drank poisoned water. He was the son of Mr.
[REDACTED].
In the long term, the sprayings caused a desertion of the school.
The parents no longer knew how to live, nor how to feed their
children, because the plantain and yucca crops were sprayed.
Many parents were forced to move elsewhere. In that year, 2002,
of the 90 children enrolled at t406beginning of the year, we
finished with only 35 students.”
5.113 Colombia Witness 8 is also from San Marcelino and a leader of the
indigenous Kichwa community there. He too described the 2002 fumigations:
“In December of 2002, I was in my house when I heard the noise
of the planes passing over the house. I approached the window
and saw that they were dumping a white smoke onto us. It is like
oil where it leaves a stain, a grease on the leaves of the plants.
They passed over my house twice, and then left.
My children drank water from the 2,000 liter collection tank,
which I was unable to cover to prevent the poison from falling in.
They also swam in the stream that I have next to my house where
the poison also fell.
As a result of this spraying, my children got sick. I have seven
children in total, it gave them all diarrhea, vomiting and bumps on
their skin. My wife got sick with a headache and stomachache.
To cure ourselves, we used medicinal plants from the jungle.
In 2002, 105 families lived on the Reservation. We had maize,
plantain, and yucca crops. The spraying ruined these crops,
especially the maize, which could not even be used for seed, and
we could not replant where they had sprayed. From the maize we
406Declaration of Colombia Witness 9, 5 Mar. 2009. EM, Vol. IV, Annex 232.
174 make chicha, which is a very important drink to our culture, as we
use it in our rites and ceremonies. The Plantain was also severely
affected, after the sprayings, we could see the leaves, but no fruit
grew, and the few which did grow turned yellow before the
harvest time.”407
5.114 Colombia Witness 4 is a farmer from La Dorada, a municipality bordering
Ecuador. He testified that he was a participant in an alternative development
programme designed by the Colombian government to encourage farmers to
grow alternatives to illicit coca crops. After his and his partners’ non-contiguous
pepper farms had repeatedly been sprayed between 2000 and 2004, an official of
the antinarcotics police recommended that they consolidate their farms into a
single plantation that could be geo-referenced and recorded with the DNE
(Colombia’s National Anti-narcotics Agency) so as to avoid accidental sprayings
in the future. In 2004 they did so. He testified:
“The farm cost us sixty million [pesos] and the establishment of
each hectare of pepper cost us twenty-four million pesos, with live
trainers. On that occasion, the Plan Colombia gave us the seed,
part of the fertilizer and the live trainers. The NGO, operator of
Plan Colombia, COMFALIAR, did all the procedures for the
georeferencing and confirmed to us that they had sent the
coordinates to the Anti-narcotics Police. However, seven months
after having planted the pepper, the area was sprayed damaging
approximately twelve of the twenty hectares of planted pepper.
We filed a claim for these damages with the administrative section
of the Municipality but we never received a response.
…
With the spraying of the year 2006, they again sprayed twelve and
a half hectares of pepper. Two partners who were on the land
confirmed to us that three planes flew over them, spraying these
crops. After the spraying the pepper crops began to turn yellow,
407Declaration of Colombia Witness 8, 4 Mar. 2009. EM, Vol. IV, Annex 231.
175 their leaves fell off and they dried up, and the stem and root
rotted” 408.
5.115 In addition to the witness accounts just quoted, included among the
annexes to this Memorial are witness statements from five other Colombian
witnesses, all of whom reside in the immediate vicinity of the Ecuador-Colombia
border, and all of whom confirm the harmful impacts of the aerial sprayings on
their families, communities, crops and livestock. Rather than quote them here,
Ecuador invites the Court to review them at its convenience 40.
5.116 The witness declarations are consistent not only among themselves but
also with the Colombian government and NGO reports cited above. They
provide compelling first-hand accounts of the harms described in those reports.
The Colombian witness statements are also consistent with the known effects of
glyphosate and associated additives, as described in Sections I and II of this
Chapter. As such, they contribute to a comprehensive and coherent body of
evidence proving the toxicity of the chemicals Colombia employs in its aerial
sprayings, and the harms these sprayings have caused to people, plants, animals,
and the environment, on both sides of the border.
408
Declaration of Colombia Witness 4, 20 Feb. 2009. EM, Vol. IV, Annex 228.
409Declaration of Colombia Witness 1, 20 Feb. 2009. EM, Vol. IV, Annex 225; Declaration of
Colombia Witness 2, 20 Feb. 2009. EM, Vol. IV, Annex 226; Declaration of Colombia Witness
5, 20 Feb. 2009. EM, Vol. IV, Annex 229; Declaration of Colombia Witness 6, 20 Feb. 2009.
EM, Vol. IV, Annex 230; Declaration of Colombia Witness 10, 5 Mar. 2009. EM, Vol. IV,
Annex 233.
176 CHAPTER VI.
THE DAMAGE CAUSED IN ECUADOR
BY COLOMBIA’S AERIAL SPRAYING OF HERBICIDES6.1 This Chapter addresses the damage caused to Ecuador, its people and
environment by the aerial spraying carried out by Colombia along the border
since 2000. Two of the most frequently and intensely sprayed areas of Colombia
have been the extreme southern regions of Putumayo and Nariño provinces,
precisely those parts of Colombia closest to the Ecuador border. As described in
Chapter II, the people living in the border communities on the Ecuador side of the
boundary -- including those who live along the Mataje, San Juan, San Miguel and
Putumayo Rivers -- are among the poorest in the nation. Most families subsist on
the food and income they are able to generate from the crops and animals they
raise themselves. Their quality of life and state of health are often marginal.
They are, therefore, extremely vulnerable to anything that threatens to disrupt the
delicate balance of their lives.
6.2 The border area is also home to substantial indigenous populations,
comprised of members of the Awá, Cofán and Kichwa communities, among
others. Indeed, two recognised indigenous territories, the Awá Territory and the
Cofán Territory (which lies within the Cofán-Bermejo Ecological Reserve),
directly abut the Ecuador-Colombia border 410. The indigenous populations in the
frontier area are not, however, found only within these territories or even limited
to Ecuador itself. Many indigenous people reside throughout the border region,
some in mixed communities with settlers, on both sides of the Ecuadorian-
Colombian boundary. Indeed, many Awá, Cofán and Kichwa move freely across
the frontier.
6.3 Colombia’s aerial spraying of herbicides along the border has caused
serious harm to Ecuador’s territory and the people who live there, including the
410The location of these territories is depicted in Sketch Map 3 of this Memorial.
179indigenous populations. The spray mixture used by Colombia has repeatedly
drifted across the international boundary into Ecuador where it has been
deposited on people, plants, crops and animals, as well as on the rivers that make
up the border. There are even reports that some sprayings have taken place
directly over Ecuador’s territory. Year after year, communities in Sucumbíos,
Esmeraldas and, to a lesser extent, Carchi have endured serious harm to human,
plant and animal health. The effect on indigenous communities has been
particularly damaging given their deep cultural connection to and reliance on the
natural environment.
6.4 The pattern of damage caused by the sprayings is consistent across both
time and space. Beginning in late 2000, and after each spray event, members of
the exposed communities have experienced a range of serious adverse effects to
their health, to the health of the crops on which they rely for subsistence and to
the health of their animals. In many cases, the lingering effects of the
fumigations have continued to be felt weeks, months and even years after the last
sprayings took place. The reports of harm suffered are not only consistent within
and across those parts of the territory of Ecuador that has been harmed, they are
also entirely consistent with the harms experienced in Colombia, as discussed in
Chapter V. This underscores the causal link between Colombia’s fumigations
and the damage that has been caused to people, plants and animals on both sides
of the border.
6.5 Chapter VI is divided into four parts: Section I details the harm to people
in Sucumbíos and Esmeraldas Provinces caused by exposure to the sprayings;
Section II addresses the harm to plants; and Section III deals with the harm to
animals. At the end of each of these sections, Ecuador demonstrates that the
harms inflicted are caused by and consistent with the predicted effects of the
180misuse of glyphosate-based herbicides in uncontrolled conditions, as described in
Chapter V. Section IV of this Chapter addresses the special harms to indigenous
communities in the affected parts of Ecuador’s territory, a matter of particular
concern to Ecuador.
6.6 By proceeding in this manner, Ecuador does not seek to imply a hierarchy
of the rights upon which it relies, or to suggest any hierarchy of complaints.
Ecuador adopts this approach to facilitate the presentation of the evidence on
which it relies in a manner that is organised and accessible. As will become
clear, the harms occasioned by Colombia’s fumigations constitute an integrated,
mutually reinforcing whole that have undone the very fabric of life in the border
region.
Section I. The Harm to People
6.7 Although the spray mixture Colombia uses is designed to kill plants, its
effects are not limited to plant species. As described in Chapter V, it is capable of
causing -- and has caused -- serious harm to human health. The experience of
people in Colombia has already been presented. Ecuador here shows that the
human health effects in Colombia are mirrored in Ecuador.
A. INDEPENDENT REPORTS
6.8 The harms to people living along Ecuador’s northern frontier have been
recognised by the UN Special Rapporteur on the Right to Health, Mr. Paul Hunt.
Following a May 2007 visit to Ecuador, during which he met with government
officials and representatives of civil society, and visited three communities in the
northern zone, Mr. Hunt held a press conference in Quito to present his
181preliminary conclusions and recommendations. His comments concerning the
health effects of Colombia’s fumigations were emphatic and unambiguous. He
said:
“The aerial spraying of glyphosate along the northern border has
to be seen in the context of the conditions of the people --
refugees, indigenous peoples, Afro-Ecuadorians, internally
displaced persons and other disadvantaged groups -- living in the
northern zone. …
In my opinion, there is an overwhelming case that the aerial
spraying of glyphosate along the Colombia-Ecuador border
should not re-commence. …
In summary, Colombia has a human rights responsibility of
international assistance and cooperation, including in health.
Consequently, as a minimum, Colombia must not jeopardise the
enjoyment of the right to health in Ecuador. It must ‘do no harm’
to its neighbour.
There is credible, reliable evidence that the aerial spraying of
glyphosate along the Colombia-Ecuador border damages the
physical health of people living in Ecuador. There is also credible,
reliable evidence that the aerial spraying damages their mental
health. Military helicopters sometimes accompany the aerial
spraying and the entire experience can be terrifying, especially for
children. (Some children told me that, while they were in their
school, it was sprayed.)
This evidence is sufficient to trigger the precautionary principle.
Accordingly, the spraying sh411d cease until it is clear that it does
not damage human health.”
6.9 Mr. Hunt’s observations are echoed in other accounts of the aerial
sprayings’ effects on the Ecuadorian people, many of which are contemporaneous
411
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health: Preliminary Note on Mission to Ecuador and
Colombia, Addendum , A/HRC/7/11/Add.3 (hereinafter “Special Rapporteur on the Right to
Health, Preliminary Note”) (4 Mar. 2007), para. 17 (emphasis added). EM, Vol. II, Annex 31.
182to the fumigations themselves. From the moment sprayings in the border region
began in late 2000, residents in the border regions of Sucumbíos, Esmeraldas and,
to a lesser extent, Carchi began to experience a range of adverse health effects,
including skin rashes, eye irritation, nausea, vomiting, diarrhea, headaches and
respiratory problems.
6.10 Dr. Dino Juan Sánchez Quishpe is the head of Marco Vinicio Iza
Hospital, the only hospital in Nueva Loja (also known as “Lago Agrio”), the
capital of Sucumbíos, roughly an hour’s drive from the closest frontier villages.
He reported that:
“…we have observed an epidemic of symptoms that have occurred
in temporal proximity to the fumigations by the Colombian border,
in the province of Sucumbíos. Since January 2001, when, I
believe, the sprayings began in this area, the hospital has reported
a significant increase in respiratory diseases and skin infection.
Since then, I have observed at the hospital and in my private
practice, episodes of diseases that repeatedly coincided with the
times when sprayings near the border were reported. I remember
particularly a period in 2004 and early 2005 during which there
were many patients complaining of headache, vomiting and skin
problems, which coincided with border sprayings. … The majority
of the patients that reported these symptoms were young. Usually,
children under the age of five were the ones with these
problems” 41.
6.11 Doctor Sánchez noted the unprecedented nature of these outbreaks:
“I had not seen this type of epidemic before. People came with
severe headaches and vomiting. I was not able to attribute these
symptoms to circumstances that would normally cause these types
of health problems. It was something new and strange. We had
treated some of these symptoms before but, usually, diseases such
412Declaration of Dino Juan Sánchez Quishpe, 15 Jan. 2009 (hereinafter “Sánchez Declaration”),
pp. 2-3. EM, Vol. IV, Annex 188.
183 as diarrhea resulted from prolonged summers, when there had not
been any rain, and people had no fresh water to consume. But it
seemed very strange to us that there were so many cases of
diarrhea and vomiting during the rainy season, which was
uncommon. I had not seen a person affected by multiple
symptoms at the same time either, such as skin disease and at the
same time diarrhea and vomiting. Nor had I seen so many people
413
affected during the same periods.”
6.12 Due to increasing awareness of and growing concern about the health
effects of the fumigations, in early 2001 an Ecuadorian NGO conducted an
observation mission to investigate the health effects of the fumigations conducted
along the border between November 2000 and March 2001. The mission found a
common set of symptoms afflicting affected populations following the
fumigations. Ailments reported included skin rashes, diarrhea, vomiting,
abdominal pain, fever, dry cough, conjunctivitis, tearing, blurred vision and
dizziness 414. The single most common symptom was fever followed by diarrhea,
skin rashes, cough, eye irritation and vomiting 415.
6.13 In July 2001, a consortium of Ecuadorian and Colombian NGOs visited
areas of northern Sucumbíos Province to learn more about the experiences of
affected populations. Residents of the community of San Francisco 2 near the
border:
“commented that at that time there was a lot of wind and that it
‘smelled horrible and their eyes and noses were stinging’. From
the very beginning everyone had red, burning and teary eyes, and
discomfort when seeing. …
413Sánchez Declaration, op. cit., pp. 3-4. EM, Vol. IV, Annex 188.
414
See Acción Ecológica, Report on the Investigation of the Fumigations’ Impacts on the
Ecuadorian Border (hereinafter “Investigation of the Fumigations’ Impacts, 2001”) (June 2001),
p. 5. EM, Vol. IV, Annex 161.
415Ibid., p. 5-6.
184 They recounted that the first ones to get sick were the children,
with digestive symptoms of diarrhea and intense vomiting with
abdominal inflammation. Later, the adults exhibited these
symptoms. …
Subsequently, they had respiratory problems, with an intense dry
cough, but that was accompanied by difficulty in breathing and
that made many children faint. These symptoms, together 416h the
fever, caused 21 children to stop attending school…” .
6.14 In September 2002, representatives of several Ecuadorian NGOs,
accompanied by representatives of Ecuador’s Office of the Ombudsman for
Sucumbíos, conducted a further field mission to the affected border regions in
both Ecuador and Colombia. This followed the renewal of aerial sprayings in July
2002. Based on their investigation, the authors of the report determined:
“A large majority of the population after the fumigations has felt
adverse impacts such as headaches and eye irritation and
tearfulness. In the Colombian communities that were more
intensely fumigated, it was common to find digestive problems,
with dizziness, abdominal pains, vomiting and nausea, diarrhea,
fatigue and loss of energy. This symptomatology is typical of
organophosphates, which is the group that Roundup Ultra belongs
to. The presence of fever in Colombia is also significantly more
widespread than in Ecuador.
Another group of symptoms appears because of skin diseases. A
great deal of pruritus (itchiness) is associated to different diseases,
ranging from dermatitis (inflammation) to the appearance of
pimples for different reasons. The irritation caused by the chemical
is evident in this symptomatology, which also occurs in the eyes,
416
Confederation of Indigenous Nationalities of Ecuador (CONAIE) et Technical Report of
the International Commission on the Impacts in Ecuadorian Territory of Aerial Fumigations in
Colombia (hereinafter “CONAIE Report”) (19-22 July 2001), p. 12. EM, Vol. IV, Annex 162.
185 which has a higher incidence on the Ecuadorian side than the
digestive symptoms.” 417
6.15 The following year, in July 2003, just two weeks after a round of aerial
fumigations in the frontier area, an inter-agency team comprised of
representatives from the Ecuadorian Ministry of the Environment, the Ministry of
Agriculture, the Nueva Loja Mayor’s Office, the Office of the Ombudsman for
Indigenous Peoples, and other governmental and non-governmental organisations
visited several northern Sucumbíos communities (as well as a village in
Putumayo, Colombia). Their task was to investigate the impacts of the latest
fumigations in Ecuadorian territory. According to the Executive Summary of the
mission’s report, the following health effects were observed:
“Every report submitted corroborates the effects on health, the
environment, and food security.
The population most affected by the fumigations is the children,
who have bumps on their skin, rashes, headaches, vomiting, fever,
and stomach pains. This has resulted in poor school performance
and a high dropout rate. …
In terms of health, the reports indicate that the population shows
symptoms such as headaches, fever, nausea, vomiting, diarrhea,
conjunctivitis, bone pain, allergies, fungi, rashes and respiratory
illness.”418
6.16 Renewed fumigations were reported later that year, in early October 2003.
An official Ecuadorian government investigation conducted in northern
417
Association of American Jurists et al., Report on Verification Mission: Impacts in Ecuador of
Fumigations in Putumayo as Part of Plan Colombia (hereinafter “Impacts in Ecuador of
Fumigations in Putumayo, 2002”) (Oct. 2002), p. 10. EM, Vol. IV, Annex 165.
418Ecuadorian Ministry of Environment et al., Impacts in Ecuador by the Fumigations Carried
Out in the Putumayo Province under Plan Colombia (hereinafter “Impacts in Ecuador by the
Fumigations Carried Out in the Putumayo Province, 2003”) (July 2003), p. 4. EM, Vol. IV,
Annex 166.
186Sucumbíos confirmed that soon after these fumigations began the local
populations reported the same familiar suite of symptoms: skin and eye irritation,
nausea, dizziness, diarrhea, respiratory infections and fevers 41. The conclusions
of the report admit no ambiguity, and include the following:
“It is evident that, the health situation in the communities visited
has deteriorated because of the fumigations, not only due to direct
effects on the health of people from the spraying of substances,
and direct contact with the skin and mucus glands, but also due to
the ingestion of contaminated water and food.
The health effects described by the populations coincide with
those described in specialized technical studies undertaken in the
area to evaluate the impact of the fumigations. These are: skin
problems and poisoning manifested in rashes, dizziness, nausea,
vomiting, abdominal pain, neurological problems, and respiratory
problems. All of these are indications of organophosphate
poisoning, which is compatible with the products used in the aerial
fumigations being carried out in the area.” 420
6.17 These same health phenomena have been observed each and every year
following Colombia’s aerial fumigations. Following the last reported series of
aerial fumigations along the border in early 2007, an international observer
mission to the area reported:
“With regard to the effects on human health, it was found that,
after the sprayings, there were very similar reactions in both
Colombian and Ecuadorian populations, especially regarding the
children who exhibited symptoms very similar to those of the flu
that resulted in general discomfort, headache, vomiting, and
diarrhea. Similarly, other symptoms in common, in both border
areas, were burning of the eyes, skin irritations and respiratory
419
National Congress of the Republic of Ecuador, Commission for Health, Environment, and
Ecological Protection, Congressman Miguel López Moreno, Report of the Visit to Communities
on the Border Cordon of the Province of Sucumbíos , (hereinafter “Congressional Visit to
Communities”) (12-15 Dec. 2003), p. 2. EM, Vol. IV, Annex 167.
420
Ibid.,. p. 5.
187 problems. These reactions were most clearly seen on the banks of
the Putumayo River, where, in two Ecuadorian communities,
Litoral and El Progreo [sic], children were unable to attend school
because most of them suffered from some type of flu, which took
approximately a week to cure, and which manifested itself a few
days after the spraying.” 421
6.18 As these sources make clear, children have been among those most
seriously affected by the fumigations. The harm they have suffered is not merely
physical. According the April 2007 report of the Ecuadorian Scientific
Commission, children in the region have suffered significant psychological
trauma as well. As the report states:
“[T]he devastating results of the chemical spraying on the socio-
economic activity of their families, sometimes strike a doubly
traumatic blow: vast material resources and spiritual resources
critical for harmonious personality development are lost, and the
positive stimuli for acquiring the knowledge and skills associated
with the profession or vocation closest to their reality are
422
weakened.”
6.19 The truth of this statement, together with a child’s perception of the harms
the fumigations have inflicted, are powerfully captured in the image depicted
below 42, which was drawn by an Ecuadorian child following sprayings along the
Putumayo-Sucumbíos border in late 2000 and early 2001. (The caption on the
421UNHCR et al., Impact of the Spraying Along the Colombian-Ecuadorian Border Area (Feb.
2007), p. 2. EM, Vol. II, Annex 29.
422Ecuadorian Scientific Commission, The Plan Colombia Aerial Spraying System and its
Impacts on the Ecosystem and Health on the Ecuadorian Border (hereinafter “Ecuadorian
Scientific Commission Report”) (Apr. 2007), p. 66. EM, Vol. III, Annex 153.
423
Ibid., p. 67.
188left side of the image reads: “Before fumigating”; the caption on the right reads:
424
“After fumigating”. )
B. W ITNESS S TATEMENTS
6.20 The Court may obtain a more detailed and personal account of the
sprayings and their effects from the dozens of witness statements from
representative border communities in both Sucumbíos and Esmeraldas Provinces
that are set out in the annexes to this Memorial. The locations the witness
testimonies come from do not -- and are not intended to -- represent an exhaustive
list of all communities on Ecuador’s side of the border that have been harmed by
42The child’s name, which Ecuador regards as confidential, has been redacted from this image.
It is included in the complete version of Annex 157, which has been filed with the Court.
189Colombia’s aerial sprayings. Nor are they intended to be comprehensive in the
accounts they present. Nevertheless, the evidence they reflect gives the Court a
coherent sense of the serious nature and broad scope of the harms inflicted.
1. Sucumbíos
6.21 The village of Salinas is located in Sucumbíos Province and sits on the
banks of the San Miguel River, which demarcates the international border with
Colombia’s Putumayo Province. Salinas is perched on a slope; many of its
houses, as well as the schoolhouse and general store, have a view of the river and
the Colombian jungle just beyond. For most of its history, Salinas has been
isolated from the rest of Ecuador. The stone road to the nearest population centre,
Nueva Loja (the capital of Sucumbíos Province), was completed just two years
ago. Before that, the main means of transport was by canoe on the San Miguel
River. Beyond affording a means of transportation, the road brought with it some
access to electricity, although most households continue to lack running water.
6.22 Salinas is largely made up of subsistence farmers, many of whom have
traditionally grown coffee as their main cash crop. They also typically raise
regional staple crops like yucca and maize as well as some livestock to be eaten
by the family and, less frequently, sold at market. Most residents live far below
the national poverty line.
6.23 Beginning in late 2000, and repeatedly thereafter, residents of Salinas
have been exposed to the fumigations taking place just across the river in
Putumayo. The map that appears below was prepared by the United Nations
Office on Drugs and Crime (“UNODC”), which monitors some of the
fumigations and, based on Colombian official flight-path data (with which
Ecuador has never been provided), produces maps that aim to depict areas of
190Colombia in which chemical sprayings have taken place during each of the years
425
from 2004 to 2007 . The UN map presented shows fumigations conducted
426
during 2006 . As indicated in the map’s key, the green dots indicate the
reported presence of coca crops, and the yellow areas indicate places where aerial
sprayings are reported to have taken place. In this map, the UNODC has drawn
red lines around the yellow spray areas, which are otherwise difficult to
distinguish due to the density of the green dots. The only alteration to the map
that Ecuador has made is to magnify the area of north-central Sucumbíos in
which Salinas is located, and to indicate the precise location of the village with a
yellow dot. As the Court can see, official UNODC data shows how close to
Salinas Colombia conducted sprayings in 2006. The map also shows how little (if
any) drift is required for the toxic herbicide to reach into and directly affect
Ecuadorian communities.
425
Similar maps and fumigation flight pattern data have not been produced for the years 2000-
2003.
426United Nations Office on Drugs and Crime, Colombia Coca Survey for 2006 (June 2007), p.
73. EM, Vol. II, Annex 24.
1911926.24 Witness 3 is a life-long resident of Salinas and a father of four. He
described his first experience of the fumigations as follows:
“I was working on my farm, seven or eight years ago, when I saw
planes and helicopters flying over the San Miguel River, over our
community, which is on the banks of the river. They crossed to
the Ecuadorian side to turn around and return to Colombia. On
their way, one could see that they were dropping a water-like
liquid; it was like a white mist that they were dropping. One could
smell a bothersome, intense odor.” 427
6.25 Witness 2, a 27-year resident of Salinas who owns a farm on the banks of
the San Miguel River, described his initial exposure in similar terms:
“About seven or eight years ago, I was working on my harvest
when the first fumigations occurred. I could observe maybe four
planes and some helicopters passing by the San Miguel River and,
when turning around, they would fly over Ecuadorian territory.
The planes were flying, dropping a white liquid that with the wind
came quickly toward us. The product had a strong odor and, at the
same moment, I felt burning in my nose and throat.” 428
6.26 He continued:
“A few days later, my body broke out with bumps that itched
intensely. Never before did I have this type of bumps all over my
body and I did not know how to treat them. I still have the scars
from those bumps. I also suffered from strong headaches and
dizziness a few weeks after the planes came by spraying. When
the sprayings returned, these same symptoms appeared a few days
later. Even to this day, I do not feel fully recovered. During each
spraying, the children in the community and neighbors that also
live on the banks of the river became sick with diarrhea and
vomiting. The younger children were more affected than others.
427Declaration of Witness 3, 17 Jan. 2009 (hereinafter “Witness 3 Declaration”). EM, Vol. IV,
Annex 191.
428
Declaration of Witness 2, 16 Jan. 2009 (hereinafter “Witness 2 Declaration”). EM, Vol. IV,
Annex 190.
193 Many children would cross the river to be treated by doctors on
the Colombian side, because at the time of the sprayings there was
no road and it was very difficult to go to Lago Agrio. Others went
to the medical subcentre in La Punta, but often we would find that
429
there was not enough medicine for everyone.”
6.27 Witness 3’s testimony is to the same effect:
“My family and I drink water from the river and bathe in it. We
also use it for cooking. A week after the fumigations, we broke
out in a rash of bumps on our skin that caused a strong itch. My
children had fever, diarrhea, vomiting and stomach ache. It was
very strange that everyone in the community got sick at the same
430
time; this had never happened before.”
6.28 The accounts of Witnesses 2 and 3 are echoed in the testimony of other
Salinas residents. Witness 5, a Salinas resident for 25 years, stated that
“We have never had an epidemic like the one caused by the
sprayings. The children had headaches and eye irritation. My
youngest daughter had vomiting and diarrhea, and the teachers
would send the children home. About four days after the
fumigations, my body ached all over and my skin itched. I had
bumps on my skin that lasted for about a month and a half. Some
children in the community fainted because they had difficulties in
breathing and were suffering from dizziness. Moreover, the
sprayings have also caused psychological problems in our village.
It has caused fear, concern, uncertainty and a lot of anxiety431y
daughter is still scared that the planes might come back.”
6.29 Similar accounts come from the residents of the Puerto Escondido area
located some 20 kilometres to the east of Salinas. Like Salinas, Puerto Escondido
is located on the banks of the San Miguel River in Sucumbíos, directly across
429Ibid.
430Witness 3 Declaration, op. cit. EM, Vol. IV, Annex 191.
431
Declaration of Witness 5, 16 Jan. 2009. EM, Vol. IV, Annex 193.
194from Putumayo. Puerto Escondido (“hidden port”) is an apt name. It is a small
community, surrounded by jungle and reached only by the narrow path that
connects it to the neighbouring villages of Puerto Mestanza and Corazón
Orense. The community was established by subsistence farmers who settled on
the land in order to cultivate their farms and raise their families. There is no
electricity and no running water. It is a tight-knit group of some twenty
households, who rely on their plants, animals, the river waters and each other to
survive.
6.30 Reproduced on the following page is the official UNODC map depicting
432
areas of Colombia fumigated in 2005. As in the 2006 map reproduced above,
the green dots indicate the presence of coca crops and the yellow indicates areas
where sprayings have been conducted. (The orange indicates the location of
poppy crops.) Here again, the only alteration Ecuador has made to the map is to
magnify the area around Puerto Escondido, Puerto Mestanza and Corazón
Orense, and to indicate the location of those villages with yellow dots. And
again, the Court will see just how little drift is required for the herbicide to reach
Ecuadorian communities on the border.
432
United Nations Office on Drugs and Crime, Colombia Coca Survey for 2005 (June 2006), p.
80. EM, Vol. II, Annex 23.
1951966.31 As in Salinas, survival in this under-developed area became significantly
more difficult after the aerial fumigations began. As described by Witness 20:
“It was late in the morning. I was with the pigs by the plantain
fields when I saw the planes. There were also helicopters. The
planes were flying like vultures fighting for food, going up and
down repeatedly. They were dropping white liquid that extended
throughout the air. In some areas it fell directly, in others it drifted
with the wind. It smelled bad, I could barely stand it. I felt the
mist go into my eyes. My eyes became sticky. I started to feel
sick and I immediately returned home. I got a headache and
dizziness. When I got home, I shouted to my children to go into
the house because they were outside playing, watching the planes.
Still, a few days later my seven children had stomach aches and
diarrhea. Before, they were healthy.” 433
6.32 Another Puerto Escondido resident, Witness 23, described a similar
experience:
“I was working outside my house and I heard a noise that was
approaching from the Colombian side. I became curious and went
to the riverbank, near my house, to see what was happening. I saw
three planes that were accompanied by helicopters. They were
flying over Colombian territory up to the riverbank. They were
going up and down over the trees, dropping a foul-smelling, gray-
white mist. A few minutes later, all of a sudden, I could not
breathe. My throat closed up and I started choking, like when one
breathes in dust. A couple of days later, my skin also 434ame
irritated, bumps appeared and they itched intensely.”
6.33 Individual accounts throughout this area confirm that the fumigations
have been particularly harmful to children. As attested by a long-time Puerto
433Declaration of Witness 20, 16 Jan. 2009 (hereinafter “Witness 20 Declaration”). EM, Vol. IV,
Annex 206.
434
Declaration of Witness 23, 16 Jan. 2009. EM, Vol. IV, Annex 209.
197Escondido resident, Witness 22, shortly after the fumigations many local children
became ill with skin rashes, eye irritation, vomiting and diarrhea:
“I was not the only one who got sick. My nephews had red bumps
on their skin, diarrhea, cough, and fever, and their eyes turned red
and burned. Their mother had never seen her children like that,
with so many problems at the same time, she did not know how to
treat them. She asked other mothers in the community, but their
children also had this strange disease and they did not know what
to do. When these diseases returned after the sprayings, in other
years, we already had a better idea of what they were, although
435
there was not much that could be done.”
6.34 In the abutting community of Corazón Orense, the effects on the children
were so widespread that the school was forced to temporarily close. Witness 9
testified:
“My children, who were playing outside when the planes came,
suffered from burning in their eyes on the day of the spraying.
Five or six days after the spraying, my children and I got rashes on
our arms and legs and then on the rest of our bodies. The rash
caused intense itching. I had a strong headache and dizziness.
The children also suffered from vomiting and diarrhea, which
lasted for two weeks. My children were not the only children
affected. Other children, my children’s schoolmates, also became
sick with vomiting and diarrhea. Because of this, the teachers
suspended classes for a few days.” 436
6.35 As in Salinas, the psychological trauma to children has been significant.
Witness 9, a mother of eight, describes the trauma shared by many Ecuadorian
children who have lived through the fumigations:
435Declaration of Witness 22, 16 Jan. 2009 (hereinafter “Witness 22 Declaration”). EM, Vol. IV,
Annex 208.
436
Declaration of Witness 9, 16 Jan. 2009 (hereinafter “Witness 9 Declaration”). EM, Vol. IV,
Annex 197.
198 “The planes came escorted by helicopters and, when I saw them,
they seemed to be flying by the edge of the river, releasing a white
smoke that had a strong chemical smell. My younger children,
who were playing outside the house, became very frightened and
came running into the house to take shelter. They still beco437
terrified every time they hear a noise similar to that day.”
2. Esmeraldas
6.36 Aerial fumigations have, at various times, been conducted across much of
the Ecuador-Colombia border. One of the most intensively and consistently
sprayed areas in Colombia has been in southwestern Nariño Province directly
across from northwestern Esmeraldas. Reproduced on the following page is a
portion of the official UNODC map depicting areas fumigated in 2004. 438 As
with the other maps reproduced above, the only alteration Ecuador has made to
the map is to magnify the area around the town of Mataje, which lies along the
Mataje River some 20 kilometres in-land from the Pacific Coast. As is clear, the
yellow spray areas actually overlap much of the Mataje River which constitutes
the international border in the area and has historically been the chief source of
fresh water for area residents.
437Witness 9 Declaration, op. cit. EM, Vol. IV, Annex 197.
438United Nations Office on Drugs and Crime, Colombia Coca Survey for 2004 (June 2005), p.
65. EM, Vol. II, Annex 22.
1992006.37 Mataje is populated by Afro-Ecuadorians who are descended from the
survivors of a Spanish slave ship bound for Perú that ship-wrecked off the
Ecuadorian coast in 1560. Before the aerial sprayings began, their homes were
almost all located along the banks of the Mataje River, on which the families
depend heavily. Due to the effects of the fumigations, however, many residents
have moved their homes farther inland to what they now term “Nuevo” (“New”)
Mataje. In response to the residents’ campaign for potable water arising from
their concerns about the effects of the fumigations on the water of the Mataje
River, a pipe providing clean water to the town has been built. Mataje is unusual
among border communities as it hosts one of the few health clinics in the border
area, albeit staffed with just one nurse.
6.38 In all respects, Mataje’s experience with the aerial fumigations parallels
those of the communities described above. The fumigations were soon followed
by illness. The lone nurse at the health centre was quoted in the report of an early
2001 field study as stating:
“At the end of September and beginning of October [2000], over 8
days, 16 children and 12 adults became ill . They had vomiting,
diarrhea, skin rash (the skin would turn red, with bumps and
rashes), headaches, irritation of the eyes and high fever. Then the
439
adults started getting sick.”
6.39 Witness 39 is a mother of five who works principally in the home, and
was among the many patients who sought help at the health centre:
“The poison that fell over us caused our body and eyes to itch. A
few days later, my children had bumps on their bodies that itched a
lot. I went to see the nurse so she could cure us and I was not the
only one there, since there were a lot of people who had gotten
439CONAIE Report, op. cit., p. 17. EM, Vol. IV, Annex 162.
201 sick after the sprayings. For that reason we had to call a doctor
from San Lorenzo, because there were too many of us for the
nurse to treat.”40
6.40 Witness 36 is a mother of four whose home was formerly located just a
few steps from the Mataje River. She recounted her experience with the
fumigations:
“The first time that I saw the sprayings was in the year 2000. I
was clearing the land in my farm, accompanied by my younger
son. I saw planes and helicopters flying over the river. From the
planes, a white rain was coming out. That rain fell on top of me
and also on top of my son; it looked like grease on the skin. At
that moment, I had a bucket of water with me, which was not
covered, and that liquid also fell in there. As I returned home, I
drank that water from the bucket. When I reached home, I bathed
with water from a small stream, and with that I washed off the
grease that was on my skin. But, on the following day, I woke up
sick, with a stomachache, vomiting, diarrhea, and itchiness on my
body. They took me to see the nurse, and there were so many
people sick with vomiting and headaches that there was nowhere
to sit. I was very sick and they made me lie down, I stayed two
days with the nurse, before losing consciousness. I was so sick
that they had to take me to the hospital in Esmeraldas where I was
admitted for six days.” 441
6.41 The same deleterious effects were experienced again, after new rounds of
sprayings. According to Witness 32, whose house sits some 30 metres from the
Mataje River:
“The second spraying is the one that affected me most. I was
returning home from work in a canoe on the Mataje River. From
the canoe, I saw the planes coming from Colombia, they were
flying over my head, following the river and then going back to
the interior of Colombia, they would circle and return again. The
440Declaration of Witness 39, 19 Feb. 2009, para. 3. EM, Vol. IV, Annex 222.
441
Declaration of Witness 36, 19 Feb. 2009. EM, Vol. IV, Annex 219.
202 planes were releasing a whitish mist and, since I was in the canoe
and the planes were flying near me, that mist fell on my body. It
felt like a greasy moisture, like a light oil. I got home in the canoe
and there I bathed with water from the river because it was the
only source of water we had, and I had to get the grease off me.
… The following day I went to get shrimp because I saw that they
were dying on the banks of the river. When I arrived at the river,
the shrimp were dying on dry land. I took advantage of it and got
them to give dinner to my family. About three hours after dinner,
everyone in the house was sick with stomachache, vomiting and
diarrhea. The following day we were still sick and, we also woke
up with bumps on our bodies, so we went to see the nurse. When
we arrived at the health subcentre, there were a lot of people who
had the same thing that we had. The nurse gave us medicines that
442
helped a little but we were sick for two more weeks.”
6.42 Additional first-hand accounts have been provided by five other Mataje
443
residents: Witness 30, Witness 33, Witness 34, Witness 37 and Witness 38 .
Ecuador will not here repeat the contents of those testimonies, and invites the
members of the Court to review them at their convenience. The declarations all
identify effects substantially similar to those recounted above by their fellow
residents of Mataje, as well as their countrymen from Sucumbíos.
6.43 They are also echoed by the contents of the 2001 field study report quoted
above at paragraph 6.13, according to which:
“…many who were sick, did not receive medical attention at the
[health] subcentre because it did not have the capacity for so
442
Declaration of Witness 32, 19 Feb. 2009 (herein after “Witness 32 Declaration”), paras. 1-2.
EM, Vol. IV, Annex 216.
443See Declaration of Witness 30, 19 Feb. 2009 (hereinafter “Witness 30 Declaration”). EM, Vol.
IV, Annex 214; Declaration of Witness 33, 19 Feb. 2009. EM, Vol. IV, Annex 217; Declaration
of Witness 34, 19 Feb. 2009 (hereinafter “Witness 34 Declaration”). EM, Vol. IV, Annex 218;
Declaration of Witness 37, 19 Feb. 2009 (hereinafter “Witness 37 Declaration”). EM, Vol. IV,
Annex 220; Declaration of Witness 38, 19 Feb. 2009. EM, Vol. IV, Annex 221.
203 many. The same thing happened in Las Delicias, Corriente Larga
and Boca de Chanul.
Eye conditions exhibited included irritation and reddening of the
eye without purulent discharge. Vomit and diarrhea were very
liquid, without blood, and antibiotics were administered for
treatment. Respiratory problems included dry cough, irritation,
444
breathing difficulties, without developing into asthma.”
C. T HE O BSERVED H ARMS AND THE K NOWN E FFECTS OF THE SPRAY
6.44 As described, Colombia’s aerial fumigations have had serious, adverse
affects on the health and well-being of Ecuador’s border communities. The
observed effects are consistent with the known risks of glyphosate, POEA and
Cosmo-Flux 445. These risks have caused the manufacturers and regulators to
impose strict and specific controls on the chemicals’ use.
6.45 As detailed in Chapter V, the manufacturer of the primary commercial
brand of glyphosate-based herbicides warns users to “[a]void contact with eyes
446
and skin” because the product causes irritation , and instructs users not to
“apply this product in a way that will contact workers or other persons, either
447
directly or through drift.” Yet, Colombia has steadfastly and constantly
444CONAIE Report, op. cit., p. 17. EM, Vol. IV, Annex 162.
445
Charles A. Menzie, PhD, Pieter N. Booth,MS & Susan B. Kane Driscoll, PhD, with
contributions/advice from Angelina J. Duggan, PhD, Charlotte H. Edinboro, DVM, PhD, Anne
Fairbrother, DVM, PhD, Marion J. Fedoruk, MD, CIH, DABT, FACMT, Janci Chunn Lindsay,
PhD,Katherine Palmquist,PhD & Brian J. Prince, MRQA,Evaluation of Chemicals Used in
Colombia's Aerial Spraying Program and Hazards Presented to People, Plants, Animals, and the
Environment in Ecuador (hereinafter “Menzie Report”) (Apr. 2009), Sec. 5. EM, Vol. III, Annex
158.
446Colombia Roundup SL Label, p. 1. EM, Vol. III, Annex 158; See supra Chap. V, paras. 5.44–
5.45.
447United States Roundup Pro Label, p. 2, Sec. 3.3. EM, Vol. III, Annex 128; see supra Chap. V,
para. 5.41.
204refused to inform Ecuador of the locations of its fumigations in advance.
Accordingly, the chemical sprayings have violated these most basic warnings. As
recounted above, many Ecuadorians were caught outdoors when the fumigation
planes arrived, leaving them directly exposed to the spray. Witnesses report
seeing the spray mist drift through the air, smelling its chemical odour and feeling
it land on their skin. Of course, none of these people had any of the protective
equipment -- goggles, masks, and the full-body covering including heavy gloves
448
and boots -- that is required for those at risk of being exposed to the chemicals .
6.46 The scores of Ecuadorians who testify that they experienced eye irritation
after being exposed to the spray mixture, including sore, red, or watering eyes and
conjunctivitis, are consistent with the recognised properties of surfactants used in
connection with Colombia’s aerial sprayings 449. The U.S. EPA has described
POEA as “corrosive to the eyes” 450. And, at least for a time, Colombia appears to
have used a highly toxic Roundup product capable of causing “irreversible eye
damage” 451. To that product, Colombia adds yet another surfactant, Cosmo-Flux,
which is also known to cause eye irritation 452. Not surprisingly, one of the most
448
See supra Chap. V, paras. 5.46, 5.49–5.50.
449
See supra Chap. V, paras. 5.36–3.37; see also Menzie Report, op. cit., Sec. 5.1.1.1. EM, Vol.
III, Annex 158.
450United States Environmental Protection Agency, Office of Pesticide Programs, Details of the
2003 Consultation for the Department of State: Use of Pesticide for Coca and Poppy Eradication
Program in Colombia (hereinafter “EPA 2003 Analysis”) (June 2003), p. 13, available at
http://www.state.gov/documents/organization/27516.pdf (last visited 26 March 2009). EM, Vol.
III, Annex 146; see supra Chap. V, para. 5.18.
451
United States Environmental Protection Agency, Office of Prevention, Pesticides and Toxic
Substances, Report on Issues Related to the Aerial Eradication of Illicit Coca in Colombia,
Response from EPA Assistant Administrator Johnson to Secretary of State, (hereinafter “ EPA
2002 Analysis”) (19 Aug. 2002), p. 8. EM, Vol. III, Annex 143; see supra Chap. V, para. 5.37.
452
See supra Chap. V, para. 5.22.
205common symptoms reported by Ecuadorian border residents is eye problems, and
in some cases long-term eye damage.
6.47 The testimonies of Ecuadorians who felt a burning sensation or numbness,
and later, itchy bumps or a rash after being exposed to the spray mist are also
consistent with the known health effects of the spray mixture. These are the same
symptoms that Colombia has acknowledged may be caused by “incidental dermal
exposure” to glyphosate products 45. It is also well known that the surfactants
454
believed to be used in the spray mixture cause skin irritation . The U.S. EPA
455
has noted that POEA causes “severe skin irritation,” as does one of the
456
undisclosed components of Cosmo-Flux . It is, therefore, understandable why
skin conditions have been among the most common symptoms reported by
Ecuadorian witnesses and seen by health care workers in the area. As Dr. Dino
Sánchez, director of the Marco Vinicio Iza Hospital in Lago Agrio, observed:
“Since January 2001, when, I believe, the sprayings began in this
area, the hospital has reported a significant increase in respiratory
diseases and skin infection. … I had never seen this type of skin
problem in the population before. I have treated, before, some
cases in which people had the papulae on the skin; for example,
during the summer there are the typical papulae from bites. But
these were a different type of papulae that did not heal from the
medication that we traditionally prescribed. Coinciding with
reports of sprayings on the border, there was a time in which there
453Republic of Colombia, Environmental Risk of the Herbicide Glyphosate (hereinafter
“Environmental Risk of the Herbicide Glyphosate ”) (date unknown), Sec. 1.7.2. EM, Vol. II,
Annex 101; see supra Chap. V, para. 5.15.
454
See supra Chap. V, para 5.36; Menzie Report, op. cit., Sec. 5.1.1.1. EM, Vol. III, Annex 158.
455
EPA 2002 Analysis, op. cit., p. 13. EM, Vol. III, Annex 143; see supra Chap. V, para. 5.18.
456EPA 2002 Analysis, op. cit., p. 14. EM, Vol. III, Annex 143; see supra Chap. V, para. 5.22.
206 was a widespread occurrence of skin problems, different from
what I had treated before.” 457
6.48 As the Court has read, many border residents report a foul chemical smell
during spray events, and some also describe a burning sensation in their throat.
Others report more serious respiratory problems, including difficulty breathing or
a dry, irritated cough. Again, these conditions are predictable. Inhalation of the
spray mixture presents significant health concerns, and breathing difficulties are
458
amongst the known risks of exposure to components of the spray mixture . The
American manufacturer of Roundup starkly warns against inhalation of its
product: “Avoid breathing vapor or spray mist” and “IF INHALED, remove
459
individual to fresh air. Get medical attention if breathing difficulty develops” .
Cosmo-Flux presents risks of its own. Safety precautions for its use include the
460
use of “breathing apparatus” . Ecuador’s experts further confirm that “[r]eports
of nasal and throat irritation and breathing difficulty are consistent with the
461
effects that could occur from inhalation of glyphosate formulations.”
6.49 In addition to inhaling the spray mix, many Ecuadorians also ingested it
because it contaminated both the food supply and drinking water. As described,
many if not most border communities lack running water and thus depend on the
border rivers and their tributaries as their chief sources of fresh water for
drinking, cooking, bathing and washing clothes. And because most area residents
457Sánchez Declaration, op. cit. EM, Vol. IV, Annex 188.
458
See supra Chap. V, para. 5.36; Menzie Report, op. cit., 5.1.1.2. EM, Vol. III, Annex 158.
459United States Roundup Export Label, p. 1 (emphasis in original). EM. Vol. III, Annex 125; see
supra Chap. V, para. 5.44.
460Cosmo-Flux 411F Safety Data Sheet , Sec. 4. EM, Vol. III, Annex 114; see supra Chap. V,
para. 5.22.
461Menzie Report, op. cit., Executive Summary. EM, Vol. III, Annex 158.
207rely on their subsistence crops for food, they had no choice but to consume
recently-sprayed food crops. Predictably, Ecuadorians from throughout the
region reported precisely the symptoms one would expect from ingesting the
spray mixture. As the Menzie Report explains: “Nausea, vomiting and diarrhea
have been reported by a number of people following spray events. These types of
effects are consistent with those that could occur from ingestion of Roundup
formulations or one or more chemical constituents added to the spray mix.
Exposure could occur from ingestion of local exposed water or food or from
462
inhalation of foul-smelling spray.” Regulatory authorities and the product
labels further confirm the risk of gastrointestinal damage from ingesting known
463
components of the spray mixture . Colombia’s own assessment acknowledges
that glyphosate intoxication by ingestion may include “erosion of the digestive
tract, which manifests as difficulty in swallowing, sore throat, and gastrointestinal
hemorrhaging” 46.
6.50 In many border communities, children have been hit especially hard,
particularly by diarrhea and vomiting. This too is to be expected, as children are
465
smaller and more sensitive to chemical exposure . These effects are quickly
compounded, particularly given the general poverty and absence of health care
that characterizes the region. It is well known, for example, that untreated
vomiting and/or diarrhea -- exactly the symptoms commonly experienced
following spray events -- are among the leading causes of infant death in the
developing world.
462Ibid.
463
See supra Chap. V, paras. 5.18, 5.22, 5.44–5.48.
464Environmental Risk of the Herbicide Glyphosate, op. cit., Sec. 1.7.1. EM, Vol. II, Annex 101;
see supra Chap. V, para. 5.15.
465See supra Chap. V, para. 5.38.
208Indeed, there are a number of reports of deaths among young children following
early spray events in particular. According to the 2001 report prepared by
CONAIE, the leading Ecuadorian indigenous organisation, four children died in
466
the northern Sucumbíos town of San Francisco 2 during sprayings in 2001 .
Quoted in Section IV below is the declaration of an indigenous Kichwa mother
from Sucumbíos, who lost two of her previously healthy infant daughters to
fumigation-induced vomiting and diarrhea following two different spray
467
campaigns (one in 2001 and the other in 2003) . With no money for doctors,
she could do little more than watch her children die.
6.51 Some of the symptoms experienced in Ecuador may also be attributable to
the components of the spray that Colombia refuses to identify, or to the particular
468
combination of chemical employed . This possibility is particularly troubling
because, as discussed in Chapter V, Colombia has failed to produce reliable
469
studies of the spray mixture’s safety to humans or even to animals . In addition,
a sizable number of border residents have been exposed to aerial fumigations on
multiple different occasions. Such repeat exposures may present additional
concerns.
6.52 The fumigations’ effects are exacerbated by the severely limited access to
health care in the border region. Medical care is often located many hours, or
even days away, from these isolated communities. For people of such limited
466See CONAIE Report, op. cit., p. 13. EM, Vol. IV, Annex 162.
467
See infra para. 6.129. See also Declaration of Witness 14, 17 Jan. 2009. EM, Vol. IV, Annex
202.
468See supra Chap. V, paras. 5.25–5.34; Menzie Report, op. cit., Sec. 3.3. EM, Vol. III, Annex
158.
469See supra Chap. V, paras. 5.25–5.26.
209means, access to care is often difficult or impossible. Thus, symptoms that might
otherwise be treatable may go untreated, leading to more serious and even long-
term health implications.
6.53 In sum, there is consensus among Roundup’s manufacturer, scientific
experts, international observers and even agencies of the Colombian government
that the known effects of glyphosate-based sprays are exactly those effects most
frequently reported by Ecuadorian witnesses.
Section II. The Harm to Plants
6.54 As set out in Chapter V, the principal known ingredient in Colombia’s
aerial sprayings, glyphosate, is a broad-spectrum herbicide the purpose of which
is to kill the plants with which it comes into contact. To this base chemical, it is
known that Colombia adds surfactants and adjuvants which are toxic in their own
right in order to increase the spray’s lethality to the hardy coca plant. The spray
chemicals do not distinguish between legitimate crops and illegitimate ones, and
they do not differentiate between the two sides of an international border. They
are just as effective, and perhaps even more so, at killing yucca, maize, rice,
470
plantain, cacao and coffee in Ecuador as they are in killing coca in Colombia .
And that is exactly what they have done. Throughout the regions of Ecuador
abutting areas in Colombia where sprayings have taken place, hectare upon
hectare of the subsistence crops and natural flora upon which local residents
depend have been devastated by the effects of the herbicidal spray drift (and, in
some cases, direct over-flight).
470Menzie Report, op. cit., Sec. 5.2.1. EM, Vol. III, Annex 158.
210 A. INDEPENDENT R EPORTS
6.55 The effects of Colombia’s aerial fumigations on food crops in Ecuador
have been recognised by the UN Special Rapporteur on the Right to Food, Mr.
Jean Zeigler. In a communication to the Government of Ecuador dated 10
February 2006, Mr. Ziegler stated:
“According to the information brought to their attention, the
destruction of subsistence crops, the impoverishment of soil
quality, and the reduction of the production capacity of border
populations, among other impacts, have all been generated as a
consequence of the sprayings carried out under Plan Colombia.
These populations, mostly of indigenous and campesino descent,
have seen a serious deterioration in their already difficult
socioeconomic situation. In addition, the reports have confirmed
that the effects of the sprayings have gravely affected private food
production and commercialization initiatives, including the
production of plantain flour in Santa Marianita or the agro-
industrial project in Puerto Mestanza. …
All of this appears to have caused a strong state of food insecurity
among the border populations and, in consequence, has unleashed
a wave of migration into the interior of the country. According to
the reports, malnutrition, which is a constant in impoverished
communities, is reaching alarming levels. In some of the
communities of Sucumbios, such as Union Lojana, Chone II,
Santa Marianita and Monterrey, the disappearance of short-cycle
crops was evident less than 15 days after the sprayings.
Several studies appear to demonstrate that the concentration of
phosphorus in the plants 3 km from the border is far higher than
the concentration in the soil. It has been reported that four years
after the commencement of the sprayings, some crops of plantains,
bananas, ‘oritos’, yucca, maize, fruit plants, and specific aromatic
herbs have disappeared or suffered a major negative impact,
reducing their quality and quantity in comparison with periods
prior to the sprayings. …
Various activities have been affected, due to the impossibility of
using the contaminated water, which, in addition to exhibiting
coloration and oil slicks visible to the naked eye, has odors that
211 affect the population. The Rapporteur believes that these facts, as
alleged, indicate a violation of the dietary right of the border
population between Ecuador and Colombia. The sprayings appear
to have produced the destruction of subsistence crops, the
impoverishment of soil quality, and the reduction of the productive
capacity of the harvest, which not only impacts in economic
activities of the communities, but the population’s access to a
proper diet.”471
6.56 The extensive damage to agricultural crops and the resultant harm to the
Ecuadorian communities that depend on them have been noted by other observers
as well. According to the data presented in a 2002 verification mission report and
reproduced below, for example, approximately 2,500 hectares of legitimate crops
were damaged in Sucumbíos alone after some of the earliest fumigations in
472
2001 .
Crops No. of hectares damaged
Coffee 1,215
Grasses 785
Bananas 182
Rice 103
Maize 87
Cacao 79
Fruit 53
Yucca 51
Total 2,560
471Report of the Special Rapporteur on the Right to Food, Jean Ziegler, Addendum:
Communications Sent to Governments and Other Actors and Replies Receive, (hereinafter
“Special Rapporteur on the Right to Food”), U.N. Doc. A/HRC/4/30/Add.1 (18 May 2007), para.
23. EM, Vol. II, Annex 33.
472
Impacts in Ecuador of Fumigations in Putumayo, 2002, op. cit., p. 4. EM, Vol. IV, Annex 165.
2126.57 According to a July 2001 NGO fact-finding report, a field study
conducted by agronomists following Colombia’s aerial fumigations observed the
following:
“COFFEE: the crops exhibit an alteration of the green color of
their leaves, with a yellowing of the central vein; followed by total
chlorosis (yellowing) and the presence of brown spots both at the
tip of the leaves and their edge; and the withering of the entire
plant. …
YUCCA: yellowing was observed in the leaves and in the root or
edible part. When cut cross-sectionally, one can see a dark
brownish-grey halo near the bark, which appears to be healthy.
These roots have a spongy texture or ‘balzosa’, as the indigenous
people call it, and a bland taste, making it useless as food or for
preparing chicha [an indigenous beverage].
PLANTAIN: withering was observed in the bottom leaves of the
mother plant and in the stems of the shoots. The campesinos said
that the growth of the plant has ceased. When cut cross-
sectionally, necrosis was observed in the xylem or conducting
tissue, which prevents the transport of sap. As the cut was made
closer to the root, the necrosis was more evident. …
RICE: there is a yellowing that has markedly reduced the harvest.
A three-month-old plot was inspected. At the mere sight of it, one
could detect a discoloration of the entire plant and the onset of
diseases. …
PASTURE GRASS: it was observed that there is discoloration or
yellowing that starts at the tips and edges of473e leaves, and
subsequently the entire plant dries and dies.”
6.58 The July 2003 inter-agency mission report cited above at paragraph 6.15
notes similar effects. According to the Executive Summary of the team’s report:
“It is evident that the fumigations are endangering the already
precarious food supply of the populations, basically because they
473CONAIE Report, op. cit., p. 16. EM, Vol. IV, Annex 162.
213 have damaged the short-cycle crops such as maize, yucca, cacao
and plantain. Many campesinos and campesinas have lost their
crops and/or seen them diminish.” 474
6.59 During the inter-agency team’s mission to affected areas, Dr. Santiago
Gangotena, Director of Environmental Management for the Ministry of
Agriculture and Livestock, asked to see the damaged crops for himself and:
“…the plot of Mr. Juan Gregorio Cuajubuay of the Santa
Marianita precinct was selected. The agricultural problems that
were directly experienced there are summarized as follows:
x In the Pastures ( Aleman and Dallys), the plants have turned
yellow and died. The plants began to turn yellow starting from
the upper part, and this advanced towards the roots. Upon
extracting the plant by its roots, it was noted that even the roots
had died.
x With the Plantain, it was easy to see from the yellowing of the
leaves and the bunches that the fruit took on a strange shape,
stopped growing, and rotted. Upon cutting it, a series of
brown spots could be seen in the center. According to the
campesinos, the process is irreversible, and once the illness has
affected the plant it cannot be recovered and the plant can only
be thrown away; nor is it given to animals, for fear of causing
them harm ….
x In the case of Cacao, the fruit basically rots, taking on a dark
brown color which changes to black. Upon cutting it, the
rotten cacao seeds can be seen.
x In the case of Maize, the situation is similar to that of the
pastures, with the additional fact that on the cob the ke475ls
lost their size, which is to say that they were smaller.”
474Impacts in Ecuador by the Fumigations Carried Out in the Putumayo Province, 2003, op. cit.,
p. 4. EM, Vol. IV, Annex 166.
475
Ibid., pp. 7-8.
2146.60 As stated by another international verification mission, led by the
International Federation of Human Rights among others, to Sucumbíos in 2005:
“All the communities that were interviewed in Sucumbíos (Unión
Lojana, Chone II, Santa Marianita, Monterrey) reported that the
land suffered the impacts immediately after the sprayings and that
short-cycle crops disappeared in less than 15 days, leaving
everything yellow. Moreover, the Chone II Community reported
the loss of crops that were supported by a Project of the Lago
Agrio Municipality. … All those living along the border agree that
the sprayi476 have weakened the soil quality and its production
capacity.”
B. W ITNESS S TATEMENTS
1. Sucumbíos
6.61 The residents of Salinas, the tiny community abutting the San Miguel
River in Sucumbíos, described the effects of the sprayings on their crops.
Witness 6 is a 30-year resident of Salinas. He recounted:
“Shortly after the sprayings, our plants also began to get sick. The
coffee planted near the riverbank was affected more severely and
more quickly than the other plants. First, it turned yellow and then
it would not produce. We had to cut down an entire hectare of
dead coffee. The coffee that was farthest from the river survived,
although it got sick and it could not bear fruit as before. The cacao
also dried up. With the cacao, the plant did not dry up, but the fruit
did and we could not get the seed out. Half of the cacao seeds
would come out completely dry and dead and the other half
477
yellow.”
476FIDH et al., Observations of the International Mission in the Ecuadorian Border with
Colombia (20-22 June 2005), p. 13. EM, Vol. IV, Annex 169.
477
Declaration of Witness 6, 16 Jan. 2009. EM, Vol. IV, Annex 194.
2156.62 Witness 1’s farm is located on the banks of the San Miguel River. He
described similar effects:
“Soon after the spraying, my crops started turning yellow and
dying. The tallest fruit trees, such as the zapote, were the first
ones to be affected. These tall trees were the first to dry up at the
top. They did not die completely although they did dry up, and no
longer produced fruit. The plantain trees were also destroyed
quickly. The plantain, planted next to my house, which is a few
meters from the river, died first. The plant was undernourished,
falling to one side, and the fruit started to die. My coffee also had
spots. The plantain finally turned black. The pastures were also
lost, the grass turned yellow and died. From my house, one can
see the river and Colombia. On the other side, I noticed that the
trees were yellow, dry, and dead. It was very similar to what had
happened to my crops, it looked like a trail of destruction; 478
although, the Colombian side was slightly more severe.”
Other Salinas residents, including both Witness 3 and Witness 2 (whose
479
testimonies were cited in Section I above), described identical phenomena .
6.63 Salinas residents were also consistent in providing accounts that indicated
that the effects of the sprayings did not quickly dissipate. They testified that the
effects, particularly on plant health, endured for some time and, in some cases,
persist even now. Witness 1 observed:
“Before the sprayings began in our area, I used to sell a lot of
coffee. I had sixteen (16) hectares planted with coffee, and each
hectare produced sixty (60) to eighty (80) quintals of the product
annually. Now, I can barely harvest eight quintals of coffee per
hectare each year. I have been strong so as to resist. But it is hard
to see all your efforts wasted without having any fault. I have
given all my youth to my farm. All my efforts, since I was
478Declaration of Witness 1, 16 Jan. 2009 (hereinafter “Witness 1 Declaration”). EM, Vol. IV,
Annex 189.
479
See Witness 2 Declaration, op. cit. EM, Vol. IV, Annex 190; Witness 3 Declaration, op. cit.
EM, Vol. IV, Annex 191.
216 seventeen (17) years old, have been invested in my land and 480
plants. To lose it all in a few days has been very difficult.”
Witness 2 described a similarly dramatic reduction in crop yields years after the
fumigations 481.
6.64 The situation became so bad that many farmers who had settled in Salinas
to work their own land were forced to turn to day-labour on farms further inland
or whatever other kind of work they could find. According to Witness 7:
“Since many of us live off the sale of coffee, when we saw that the
coffee no longer produced, most of us went to work as day
laborers for neighbors that were farther inland, who had not been
affected by the fumigations, to earn money for the day or week.
Or sometimes, we had to go to Lago Agrio to look for work. I
found a way, more or less, to support my family. There were
neighbors that had nothing to eat. Sometimes, the neighbors that
still had some pasture left would share it with others. Those who
knew how to saw, sawed wood. Before, no one even knew about
woodwork because things were good, moreover when there was
coffee to sell – there was work for everyone. After the sprayings,
some families had to abandon their farms, and they still have not
returned.” 482
6.65 The effects in the Puerto Escondido area, were similar; residents there
describe similar destruction of their crops. Witness 21 is an 18-year resident of
Puerto Escondido whose home sits less than a hundred metres from the San
Miguel River. She testified:
“After each spraying, the maize plantations were damaged. The
rice no longer grew, it became yellowish. When this happened
after the first spraying, some people said that this was not because
of the sprayings, but possibly due to a pest. But, when the exact
480Witness 1 Declaration, op. cit. EM, Vol. IV, Annex 189.
481Witness 2 Declaration, op. cit. EM, Vol. IV, Annex 190.
482
Declaration of Witness 7, 16 Jan. 2009. EM, Vol. IV, Annex 195.
217 same thing happened after the second fumigations, there was no
doubt that it was on account of the sprayings. After this, the soil
became weak. The crops that grew were weak, small and of poor
quality. The quantities of maize harvested now are far less than
what could be drawn from the earth before.” 483
6.66 Witness 8, a farmer in Corazón Orense, just outside Puerto Escondido,
for some twenty years, similarly recounted that:
“About two weeks after the spraying, the plants started to wither, it
was a slow process that ended with the crops drying up
completely. I cut the maize and it was black in the middle. Not
only would the leaves dry up but also the insides. The plantain
hardened and it was black, but we ate it anyway because we had
nothing else to eat. We waited until they finished spraying to plant
again, but the plants would grow yellow and dry up.” 484
6.67 Also neighbouring Puerto Escondido some two kilometres to the north is
the community of Puerto Mestanza. Before the fumigations began, the principle
source of employment in Puerto Mestanza was Mr. Victor Mestanza’s farm,
which is located within metres of the river. Over the course of twenty years, the
Mestanza farm had expanded from cultivating plantain, maize, rice and various
fruits to include raising pigs, ducks and farm-raised fish. The farm’s crops
consisted of eight hectares of panela sugarcane, 30 hectares of golden plantain, as
well as short-cycle crops including maize, rice and fruits. Thanks to a large
capital investment, 18 fish pools were constructed to farm-raise 120,000 tilapia.
6.68 The impressive success of Mr. Mestanza’s farm was brought to an end
when the first fumigation planes arrived in November 2000. As recounted by Mr.
Mestanza himself in October 2002:
483Declaration of Witness 21, 16 Jan. 2009. EM, Vol. IV, Annex 207.
484
Declaration of Witness 8, 16 Jan. 2009. EM, Vol. IV, Annex 196.
218 “In the fumigations of November 2000, I lost 30,000 fish as a
direct effect of the chemical compound used in the fumigations, all
dead, 4 hectares of plantain, 2 of yucca and farmyard animals. On
the second occasion of the sprayings, conducted in early January
2002, in which spraying planes flew for three days consecutively
over the pools, I was affected by the death of … 10 hectares of
maize and the partial death of 6 hectares of sugarcane, and the
total loss of the fruit of a citrus plantation …. The fourth time was
th th
Monday 7 and Thursday 10 of October of this year [2002],
when the spraying planes flew over my property again. There is
clear evidence of the death of woodlands, orito and sugarcane; that
is practically liquidating my project and my finances, and, as a
result, the source o485mployment for many people in the area who
work at my farm.”
6.69 Among the residents of Puerto Mestanza is Witness 10, a Colombian
citizen who previously witnessed the same impacts in southern Colombia
following fumigations there. He testified:
“All the rice, maize, malanga, and also the cacao were ruined.
Even the pastures dried up to a yellow color. The same thing
happened in Colombia, before I moved to Ecuador, and it is still
happening, as I have observed during my regular visits over the
years. I have seen similar effects in Colombia in the southern
areas of Putumayo, where the Government sprays. … In Colombia
the effect is the same as in Ecuador but a little more excessive.
Here, in Ecuador, after the sprayings, the soil has lost its strength.
Now, the soil has to be fertilized a lot. … At first, when I arrived
here, it was very go486 the maize and yucca grew in abundance.
Now they do not.”
485
Letter from Victor Mestanza to Roger Mera, Regional Chief Sucumbíos-Orellana, Ministry of
the Environment (14 Oct. 2002), p. 1. EM, Vol. IV, Annex 237.
486Declaration of Witness 10, 16 Jan. 2009 (hereinafter “Witness 10 Declaration). EM, Vol. IV,
Annex 198.
219 2. Esmeraldas
6.70 The effects on crops described by independent observers and affected
populations in Sucumbíos are echoed in other locations where Colombia’s aerial
fumigations took place. The Afro-Ecuadorian people of Mataje, for instance,
provide a similar account of the impacts that they observed.
6.71 Witness 34 described the appearance of the spray as it descended on his
crops:
“In the air it looked like a white dust. With the wind, it moved
through the air and descended to the ground. When it fell on the
plants, I noticed that it looked like oil on top of them.”487
6.72 He then described what this oil-like substance did to his crops:
“After the spraying, the plants also died. At the house where I was
living, there were a lot of plants for consumption: coconut,
plantain, cacao, lemon and other fruit plants. A few days after the
spraying, we could see that the plants were dying. The fruits
looked burned, black. The lemon turned black. The same thing
happened to the plantain, it was black both outside and inside.
The same happened to the cacao. We could not eat these fruits.
The leaves were black, withered and falling off. The stems of488
several plants started to rot and, in the end, they all died.”
6.73 Witness 37 provided a similar account and related how the same effects
repeated themselves after each new round of fumigations:
“On my farm, of more or less one cultivated hectare, I have
planted cacao, yucca, plantains, and sugarcane, all of which have
dried up. A few days after the sprayings, I noticed the effect on
the leaves. They started to wrinkle and then turned yellow.
487Witness 34 Declaration, op. cit., para. 2. EM, Vol. IV, Annex 218.
488
Ibid., para. 4.
220 Several weeks later, the plants died. The plantain plant and its
fruit dried up, and we could not eat it because it had been ruined.
The cacao dried up, including the leaves, and the tree died.
Moreover, the yucca also rotted, even though the crop is below the
ground; it turned black and the plant above the ground dried up.
The land remained affected for several months, there was nothing
there. For some years, we hardly planted anything because the
land would not produce. Fortunately, now the land is recovering
little by little. After the second and third fumigation, precisely the
same effects occurred. People were very worried. It is hard [for
the campesinos] to invest all this work only to lose their crops. We
were living off of the agriculture, but because of the spraying, we
could no longer feed our families with the crops. We also no
longer had anything to sell after the sprayings. There was a lot of
suffering in the community.” 489
6.74 Witness 32, whose testimony was also cited in Section I above, described
how he was forced to relocate to the “New” Mataje as a result of the devastation
of his crops:
“After everything had dried up, we tried planting again, but the
plants did not produce, they grew a little, to a very small height,
and instead of growing more they would die without producing. I
have always lived off farming but after the sprayings, I could no
longer do it, that is why I was forced to move to the new town of
Mataje in search for a job and opportunities to survive, just like
490
many other families in town.”
6.75 Witness 39, a life-long resident of Mataje, similarly recounted how some
families left the area altogether, while others moved to “New” Mataje:
“After the sprayings and their effects on the community, we
started to worry that it was no longer healthy or safe to consume
water from the river and its streams as we had always done before.
Some people left the town because one could no longer live there.
489Witness 37 Declaration, op. cit., paras. 4-5. EM, Vol. IV, Annex 220.
490
Witness 32 Declaration, op. cit., para 4. EM, Vol. IV, Annex 216.
221 We could not plant, and we had to look for another place where we
could be and plant peacefully without being afraid that the planes
might return and ruin our crops. Several families moved from old
Mataje to the new town, which is nearby but farther into the
interior.”91
C. T HE O BSERVED H ARMS AND THE KNOWN EFFECTS OF THE SPRAY
6.76 In Chapter V, Ecuador demonstrated that the known ingredients in
Colombia’s spray mix are lethal to all plants. As Roundup’s manufacturer warns,
“severe injury or destruction” results from the herbicide’s contact with non-target
plants, including, of course, the yucca, maize, plantain, cacao, coffee, rice and
other food crops upon which Ecuadorian border communities depend 492. The
extensive destruction of food crops and other plants in Ecuador as a result of their
exposure to Colombia’s spray mix was entirely predictable. That is why the use
of these chemicals is so strictly controlled by many States.
6.77 As recounted above, witnesses testified that they saw an oily sheen on
crops and other plants following spray events. This is consistent with how
glyphosate works; it enters plants through their leaves 493. The subsequent
yellowing and withering of leaves, rotting of roots, fruits and seeds, and the
burned appearance of plants described by Ecuadorian farmers and others are
precisely the effects expected from exposure to glyphosate94.
491
Witness 39 Declaration, op. cit., para. 6. EM, Vol. IV, Annex 222.
492Australia Roundup Biactive Label, p. 3. EM, Vol. III, Annex 147; see supra Chap. V, paras.
5.51–5.53.
49See supra Chap. V, para. 5.6
494
See supra Chap. V, para. 5.6; see also Menzie Report, op. cit., Sec. 5.2.1 (“The effects on
agricultural plants that have been reported in the border region of Ecuador and Colombia,
2226.78 The reported time-frame of the effects is also consistent with glyphosate’s
495
mechanism of action; it works to kill plants over a period of days or weeks , and
is most effective when the plant is growing, in the period before it becomes
productive. Indeed, the manufacturer’s description of Roundup’s activity and
effects is remarkably consistent with the observations of Ecuadorian witnesses as
presented above:
“This product moves through the plant from the point of foliage
contact to and into the root system. Visible effects are a gradual
wilting and yellowing of the plant which advances to complete
browning of aboveground growth and deterioration of
underground plant parts. Effects are visible on most annual weeds
within 2 to 4 days, but on most perennial weeds, effects may not
be visible for 7 days or more.” 496
6.79 The fact that the spray may have been released at a distance from the
affected plants is immaterial. In the first instance, many of the Ecuadorian
communities most affected lie directly on the narrow rivers separating Colombian
and Ecuadorian territory. The amount of drift required to reach Ecuadorian
territory and populations is minimal. Moreover, it is well established that even
“minute quantities of this product [Roundup] can cause severe damage or
destruction to crops, plants, or other areas on which treatment was not
intended” 49. Thus, even “minute” amounts of the spray mixture, drifting across
the border, are enough to harm plants in Ecuador. Exacerbating the danger is the
fact that Colombia appears to have used a particularly powerful Roundup
including yellowing, withering, and drying, and rotting of roots and other plant tissues, are
consistent with the known effects of glyphosate-based herbicides.”). EM, Vol. III, Annex 158.
495See supra Chap. V, para. 5.6.
496
United States Roundup Pro Label, p. 2, Sec. 5.0. EM, Vol. III, Annex 128.
497United States Roundup Pro Label, p. 2, Sec. 5.0. EM, Vol. III, Annex 128; see supra Chap. V,
paras. 5.9, 5.52.
223formulation that is registered only for non-agricultural use, and that is applied at a
498
rate that far exceeds rates that are typical for agricultural sites .
6.80 In addition, the spray mixture has been engineered to penetrate the waxy
leaves and woody stems characteristic of the coca plant. It is thus heavily laden
499
with surfactants which drastically increase the spray’s lethality . Because many
of the food crops grown in Ecuador, such as yucca, maize and plantains, lack the
protection afforded by the coca plant’s natural defences, they are especially
vulnerable to even small amounts of spray. As Ecuador’s experts conclude:
“many of the crop plants grown in the border region of Ecuador and Colombia are
more susceptible to glyphosate-based herbicides than the coca plant.” 500
6.81 The accounts presented above show that plants were weakened and crop
yields reduced for months or even years after spray events. While the dynamics
of agro-ecosystems are complex -- and all the more so in a tropical setting like
Ecuador -- these long-term changes are likely attributable to secondary, as well as
primary, effects of the chemicals in Colombia’s spray mix. Glyphosate is, for
example, closely associated with abnormal plant growth, harm to future
generations of plants, and increased susceptibility to disease, especially by
facilitating fungal attack 501. As the Menzie Report describes: “[t]he reported
long-term lowered or impaired productivity of crops such as coffee, yucca, and
plantains are consistent with potential effects of the formulation. These long-term
effects could arise from weakening of the plants and rendering them more
susceptible to infections by fungi, nematodes, and other parasites. Formulations
498See supra Chap. V, paras. 5.8, 5.13–5.14.
499See supra Chap. V, paras. 5.17, 5.21, 5.53.
500
Menzie Report, op. cit., Sec. 5.2.1. EM, Vol. III, Annex 158.
501See supra Chap. V, paras. 5.10, 5.54.
224have also been reported to result in diminished soil productivity by adversely
502
affecting nitrogen-fixing plants and their symbiotic fungi.” Indeed,
Colombia’s own studies demonstrate that spraying operations have been followed
by dramatic changes in soil chemistry that render the land substantially less
conducive to cultivation 503. Here again, the harm to crops and other plants in
Ecuador were predictable, based on the chemical properties and known effects of
the ingredients in Colombia’s herbicidal spray.
Section III. The Harm to Animals
6.82 In addition to the adverse effects on people and plant life in Ecuador,
Colombia’s aerial fumigations have also exacted a heavy toll on animals, both
domestic and wild. Wherever and whenever sprayings took place in the border
region, reports of serious harm to domestic and wild animals soon followed.
Smaller animals, including fish, other aquatic species and chickens in particular
were especially susceptible to the fumigations’ effects, although larger mammals
were also affected. The harm to animals is of added concern because the
impoverished border populations depend so heavily on their animals, both as a
food supply and as a source of supplemental income.
A. IDEPENDENT R EPORTS
6.83 As with the harms to people and plants, accounts of the effects of
Colombia’s aerial sprayings on animals in Ecuador date back to the advent of
fumigations in the border zone in late 2000 and early 2001. The following
description is taken from a June 2001 report prepared by a consortium of NGOs
502Menzie Report, op. cit., Executive Summary. EM, Vol. III, Annex 158.
503
See supra Chap. V, para. 5.61.
225that visited the area soon after the sprayings. Concerning the effect on animals in
the vicinities nearest the border, the report states:
“The indigenous and campesino communities expressed bird
breeding as their main concern. They reported that during the
sprayings a great number of chickens and turkeys suffered from
some type of plague, with ‘a suffocation sensation’, ‘bumps with a
504
bad smell’, becoming blind and finally dying.”
6.84 The table below is taken from a 2002 NGO report and provides an
estimate of the animals that died in the parishes of General Farfán, Nueva Loja,
Pacayacu, Dureno y Tarapoa, all in northern Sucumbíos abutting Colombia,
505
following the 2001 fumigations .
Damage to crops and animals in Sucumbíos
(Ecuador) - 2001
Animals No. of dead animals
Fish 6,355
Hens 4,681
Pigs 315
Cows 188
Guinea pigs 117
Ducks 73
Dogs 49
Horses 43
Total 11,828
50Investigation of the Fumigations’ Impacts, 2001, op. cit., p. 10. EM, Vol. IV, Annex 161.
505
Impacts in Ecuador of Fumigations in Putumayo, 2002, op. cit., p. 3. EM, Vol. IV, Annex 165.
2266.85 As the numbers in the chart (and the testimonies presented below) reflect,
fish were particularly susceptible to the effects of the spray. The destruction of
Victor Mestanza’s tilapia ponds described above is a particularly dramatic
demonstration of that fact. But Mr. Mestanza’s fish ponds were not alone. A
similar event was reported in the community of Santa Marianita in 2003, where
farmed fish died when the fumigant fell on the farmers’ pools 506.
6.86 Due to the remoteness and poverty of the region, less is known about the
impacts of the aerial fumigation on wild animal species, including fish in the
border rivers and particularly amphibian species that are especially susceptible to
the effects of glyphosate-based herbicides. What information is available,
including the indigenous testimonies presented in Section IV below, suggests that
significant effects have rippled through the biosphere. According to a 2001 inter-
agency technical report:
“It is worth noting that some people are said to have found
numerous dead rainforest animals, on the mountain near where the
fumigations were carried out, not being eaten by other animals,
simply decomposing there. They continue to find them.” 507
6.87 Similar observations are reflected in the July 2003 report of the
governmental verification mission to the border area already cited above at
paragraphs 6.15 and 6.58. As recounted in the report, Mr. Felipe Maya, president
of the community of Monterrey, reported that “[t]he wild birds have disappeared,
and they can no longer be heard singing in the mornings or the evenings” 508.
506Ibid., p. 12.
507CONAIE Report, op. cit., p. 15. EM, Vol. IV, Annex 162.
508
Impacts in Ecuador by the Fumigations Carried Out in the Putumayo Province, 2003, op. cit.,
p. 12. EM, Vol. IV, Annex 166.
227 B. W ITNESS STATEMENTS
1. Sucumbíos
6.88 The effect of Colombia’s fumigations on animals in Ecuador is
demonstrated in Salinas, the experience of which appears typical of the damage
that has been caused across swathes of Ecuador’s border region. Animals were
sickened, and many died, as a consequence of the spraying. Witness 4 is a
mother of six who grew up in Salinas. She testified:
“We used to raise pigs, chickens and cows on the farm. A few
weeks after the spraying, the calves had a white diarrhea and a few
days later they died. We have always fed the animals with
products from the crops because we did not have any money to
buy special food for them. When I woke up, I found several dead
chickens near the509ee. The pigs lost their hair and stopped eating.
They also died.”
6.89 Witness 3 stated:
“Three days after the spraying, the chickens that were on the tree
at nightfall were found dead, the following day, on the ground.
The cows that were pregnant had miscarriages. We also saw a lot
of dead fish in the river, during the time of the sprayings. We have
even noticed that in recent years there has been a decline in some
species such as the monkeys and guatuzas, a type of rodent, before
there were many of them and now there are hardly any.” 510
6.90 Witness 9 provided a similar account:
509Declaration of Witness 4, EM, Vol. IV, Annex 192.
510
Witness 3 Declaration, op. cit. EM, Vol. IV, Annex 191.
228 “The animals also became sick: I had forty chicks and nearly all
of them died. The dogs got thin and many pigs lost their hair. The
cows that were about to give birth miscarried.” 511
6.91 Witness 2 noticed the effects of the sprayings on wild fish and animal
species in particular:
“I used to fish in the San Miguel River. In the days after the
sprayings, dead fish started to appear, especially bocachico and
shad.
In the past years, animal species have disappeared. Before, we
used to see a lot of monkeys and parrots around the farm and in
nearby mountains. Now, one seldom sees a monkey or a
parrot.”512
6.92 Effects on animals, especially fish, were equally pronounced in the
Puerto Escondido area, including Puerto Mestanza. In his 2002 statement, Mr.
Victor Mestanza wrote:
“In the fumigations of November 2000, I lost 30,000 fish … and
farmyard animals. On the second occasion of the sprayings,
conducted in early January 2002, in which spraying planes flew
for three days consecutively over the pools, I was affected by the
death of 60,000 fish. … The third time, which began in early
September of this year [2002], I had a huge financial loss, for I
513
lost 400 ducks and 80,000 fish [and] the pigs were sick …” .
6.93 The effects were not limited to the farm-raised fish. Witness 10, the
Colombian citizen who had moved to Puerto Mestanza in search of work and
safety, observed many dead fish in the San Miguel River:
511Witness 9 Declaration, op. cit. EM, Vol. IV, Annex 197.
512
Witness 2 Declaration, op. cit. EM, Vol. IV, Annex 190.
513Letter from Victor Mestanza to Roger Mera, Regional Chief Sucumbíos-Orellana, Ministry of
the Environment (14 Oct. 2002). EM, Vol. IV, Annex 237.
229 “I also earn some money fishing in the San Miguel River and its
tributaries. I went to the river to fish the day after the sprayings
and I saw dead catfish, bocachico and black pacu in the streams
that run from the San Miguel River. The fish looked inflat514on
the water. I had never seen this before the sprayings.”
6.94 Nor were the effects confined to fish. As elsewhere in Sucumbíos, there
were reports of miscarriages among cows that had eaten contaminated crops and
drunk contaminated water. Again, according to Witness 10:
“I have several neighbors whose cows were pregnant and had
miscarriages. This had never happened before. They ate the
affected pasture and drank the water contaminated with the
chemicals that the planes dropped.” 515
6.95 Due to the devastation to of its animals and crops, the Mestanza farm
today consists of a few barely productive fields. And the town of Puerto
Mestanza as a whole, once more than 20 households strong, has been abandoned
by all but eight of the original families.
6.96 In Puerto Escondido itself, Witness 22 witnessed similarly harm to his
domestic animals:
“The dogs got thin. At the same time, the pigs got sick and did not
fatten up. Pregnant pigs, like the chickens, did not have good
offspring. They were born weak and undernourished, and they
were not well developed. I had to stop raising pigs because they
were born unhealthy and I was losing more money than I
made.” 516
He also noted effects on local wild birds:
514Witness 10 Declaration, op. cit. EM, Vol. IV, Annex 198.
515
Ibid.
516Witness 22 Declaration, op. cit. EM, Vol. IV, Annex 208.
230 “In addition, shortly after the spraying, I saw dead muchileros.
Muchileros are wild birds about the size of a small chicken with
bluish-black feathers. During the sprayings, I noticed that the birds
were fleeing the area being sprayed; they flew away.” 517
2. Esmeraldas
6.97 The accounts of witnesses from Mataje are similar. Typical is the
testimony of Witness 30, a 34-year resident of Mataje whose home sits
approximately 70 metres from the Mataje River. He declared:
“I had some animals, including some pigs and chickens. The
liquid fell on the animal feed. The chickens eat maize. The pig
eats guineo and chileno, but these plants were contaminated. I had
a hectare of plants, to feed the animals, but all the plants were
ruined, I no longer had any feed for the animals. The plants were
518
finished and the animals were finished.”
6.98 The home of Witness 32 is located just 30 metres from the river. He
testified:
“The ones that suffered the most were the pigs. After the
sprayings, they got sick, they seemed sad and they would not eat
anything, they got thin and, in the end, some of them starved to
death. They had nothing to eat because the plants that they used to
eat were also ruined. My dog, named Laisa, got sick. She was
519
vomiting and would not eat, and fifteen days later she died.”
6.99 As elsewhere, the residents of Mataje observed particularly dramatic
effects on fish. According to Witness 34:
517Ibid.
518Witness 30 Declaration, op. cit., para. 5. EM, Vol. IV, Annex 214.
519
Witness 32 Declaration, op. cit., para. 3. EM, Vol. IV, Annex 216.
231 “After the spraying, there were a lot of dead fish and shrimp.
Usually, the fish and shrimp are below the water level. But, after
the sprayings, they were floating on the surface of the river and
going downstream with the current. I observed this immediately
after the sprayings. We could not use fish or shrimp to eat because
520
they were infected.”
6.100 Witness 39, the mother of five whose testimony is cited also in Section I
above, likewise observed large numbers of dead fish:
“After the sprayings, there were a lot of dead fish in the river. My
son Gabriel told me that he had seen a lot of minchillas, which are
a type of shrimp, dead in the river. We wanted to get the fish and
take them home to prepare them and eat them. We have always
eaten fish from the river, they are part of our diet. But the nurse
told us not to do it because they could make us sick. If there were
so many dead fish, there had to be something wrong, and that
521
could make us sick.”
C. T HE O BSERVED H ARMS AND THE KNOWN EFFECTS OF THE SPRAY
6.101 As discussed in Chapter V, and reiterated in Section I above, Colombia’s
522
spray mixture contains ingredients that are known dermal irritants . The
irritated skin and hair lossobserved on animals is consistent with the known
523
effects of the fumigant . Indeed, it should be noted that animals may well be
more vulnerable to these effects than humans. Unlike people, the animals do not
know to seek shelter when the spray planes approach and cannot bathe
themselves afterwards.
52Witness 34 Declaration, op. cit., para. 3. EM, Vol. IV, Annex 218
521
Witness 39 Declaration, op. cit., para. 4. EM, Vol. IV, Annex 222.
52See supra Chap. V, paras. 5.18, 5.22, 5.58.
523Menzie Report, op. cit., Sec. 5.2.3 (explaining that the surfactants in glyphosate formulations
may cause both primary and secondary skin irritation in animals). EM, Vol. III, Annex 158.
2326.102 Ingesting glyphosate-based products is known to cause gastrointestinal
damage 524. Roundup’s manufacturer specifically instructs that domestic animals
should be prevented from entering sprayed areas and from ingesting contaminated
feed or vegetation 52. The Menzie Report further confirms that “[s]praying with
glyphosate-based herbicides may also reduce the local food supply for
domesticated animals, which may lead to decreased body condition and
performance in livestock and other farm animals.” 526 Yet, most Ecuadorian
residents of the border area are subsistence farmers. They do not have the luxury
of preventing their domestic animals from consuming pasture or other feed crops
contaminated by the fumigations; that is all the food there is. It was thus
predictable that in the days and weeks following spray events, many animals
would become sick, lose weight, appear malnourished and eventually die.
6.103 Likewise, the testimony regarding cows spontaneously aborting their
pregnancies (see paragraphs 6.89, 6.90, and 6.94) is consistent with relationships
between glyphosate consumption and maternal health outcomes noted by both
527
CICAD and the U.S. EPA .
524
See supra Chap. V, paras. 5.15, 5.57; see also Menzie Report, op. cit., Sec. 5.2.3 (describing
the hazards to animals of ingesting glyphosate-based herbicides, including gastrointestinal
irritation, vomiting, diarrhea and colic). EM, Vol. III, Annex 158.
525
See supra Chap. V, para. 5.57.
526Menzie Report, op. cit. Executive Summary. EM, Vol. III, Annex 158.
527Keith R. Solomon et al., Environmental and Human Health Assessment of the Aerial Spray
Program for Coca and Poppy Control in Colombia, prepared for the Inter-American Drug Abuse
Control Commission (CICAD) section of the Organization of American States (OAS), (31 Mar.
2005), p. 55. EM, Vol. III, An nex 151; United States Environmental Protection Agency,
GLYPHOSATE – 2nd Report of the Hazard Identification Assessment Review Committee (22 Jan.
2002), pp. 3–4, 9, 12. EM, Vol. III, Anne x 142; United States Environmental Protection Agency,
GLYPHOSATE – Report of the Hazard Identification Review Committee (20 Apr. 1998), pp. 3–4,
7–8, 10. EM, Vol. III, Annex 134; see supra Chap. V, para. 5.15.
2336.104 The many reported fish kills of both wild and farm-raised species are also
consistent with the known risks of both Roundup and Cosmo-Flux 528. Both
products contain surfactants that are especially toxic to aquatic species 52. The
manufacturer’s warnings, which contain drawings of dead fish, could scarcely be
530
any clearer: “Avoid direct application to any body of water.” Even so,
Colombia’s spray planes have repeatedly fumigated directly over the border
rivers, not to mention their many tributaries on the Colombian side of the
international frontier.
6.105 Harder to measure are the sprayings’ effects on the natural ecosystems
and the extraordinary biodiversity they support 531. Countless biological
processes, including nutrient and carbon cycles, pollination, plant-fungus
interactions important to soil health, and food chains may be disrupted by the
introduction of the toxic spray mixture into the border region’s complex
ecosystems 53. The spray also presents serious concerns for individual species.
To cite just one example, the surfactants in the spray present a special danger to
Ecuador’s enormous diversity of amphibian species, which studies show to be
particularly susceptible to harms induced by glyphosate-based products 533. A
laboratory study conducted as a follow-up to the CICAD Report found that
Colombia’s spray mixture killed over half of exposed tadpoles within four
528Menzie Report, op. cit. Sec. 5.2.4. EM, Vol. III, Annex 158.
529
See supra Chap. V, paras. 5.63–5.65.
530
United States Roundup Original Label , p. 4, Sec. 7.1. EM, Vol. III, Annex 127;Colombia
Roundup SL Label, p. 2. EM, Vol. III, Annex 115; see supra paras. 5.62–5.63.
531See supra Chap. V, paras. 5.68, 5.69–5.71.
532Menzie Report, op. cit., Secs. 5.2.2, 5.3.2. EM, Vol. III, Annex 158.
533
See supra Chap. V, paras. 5.65–5.66.
234 534
days . As the Menzie Report explains, amphibians are especially vulnerable to
spray drift because they are particularly sensitive to the chemicals in the spray,
they inhabit both aquatic and terrestrial environments, and they are susceptible at
535
multiple life stages . Indeed, Colombia’s sprayings may even present an
extinction risk, as many of these amphibian species are endemic to the region and
536
have small baseline populations . Yet, the extent to which these threats have
become reality remains unknown precisely because so many of Colombia’s
fumigations have been conducted adjacent to undisturbed primary ecosystems. In
some cases, there are no human witnesses to perceive the impacts in those
regions.
Section IV. The Special Harm to Indigenous Communities
6.106 As discussed in Chapter II, as much as 30% of Ecuador’s population is
indigenous. Many of these people and their ancestral lands are located in the
northern region abutting the Ecuador-Colombia border, the area which has
suffered the brunt of the harm caused by Colombia’s sprayings. Indeed, as
depicted on Sketch Map 3 in Chapter II, two recognized indigenous territories --
the Awá Territory and the Cofán Territory -- sit squarely on the border itself.
These indigenous communities share an abiding respect for and reliance on the
natural environment in which they live. Not only do they rely on the local plants,
animals and water for their physical survival, they rely on them also for their
cultural well-being and survival as communities. The devastating effects of
534
United States Department of State, Report to Congress: A Preliminary Evaluation of the Risk
Posed to Colombia’s Amphibians and Threatened Species by the Government of Colombia’s U.S.-
Supported Program of Aerial Eradication of Illicit Crops (Aug. 2006), p. 4. EM, Vol. III, Annex
156.
535
Menzie Report, op. cit., 5.3.3. EM, Vol. III, Annex 158.
536See supra Chap. II, paras. 2.14-2.15.
235Colombia’s fumigation programme have thus been felt with particular acuteness
by Ecuador’s indigenous population.
A. INDEPENDENT R EPORTS
6.107 In April and May 2006, the UN Special Rapporteur on the Rights of
Indigenous People, Mr. Rodolfo Stavenhagen, conducted an official visit to
Ecuador. He met with members of the government and civil society, and
interviewed representatives of indigenous nationalities and peoples. In December
2006, he issued his report setting forth his findings. The report is worth citing
extensively. With respect to indigenous peoples on the northern border, Mr.
Stavenhagen stated:
“28. Currently, the region’s most serious problem is the aerial
spraying of illicit crops on the Colombian side of the border, using
glysophate [sic] mixed with other products, under the auspices of
Plan Colombia (see the report of the Special Rapporteur on
Colombia, E/CN.4/2005/88/Add.2). Damage caused by this
practice has affected Ecuador, particularly its indigenous
communities, and has given rise to complaints by the Ecuadorian
Government and to bilateral negotiations between the two
countries. International studies indicate that this practice has
negative effects on environmental resources and the health of
people and animals. Skin and other diseases, pollution of rivers
and aquifers, and other damage have been reported. Furthermore,
spraying has been seen as having serious effects on banana
plantations and varieties of tuber crops, the local staple. In
addition, the population often uses untreated water from the river
forming the border between the two countries.
29. In some communities in Sucumbíos, short-cycle crops are
disappearing fewer than 15 days after spraying. It is stated that,
four years after the spraying began, some banana varieties, yucca,
maize, fruit trees and aromatic herbs have disappeared, or their
yield has considerably diminished. It is alleged that spraying has
also had a negative effect on the health and food security of border
populations by polluting their water sources and the aquatic life.
Complaints have been made concerning large traces in many
236 rivers, including the Mira river in the province of Esmeraldas, of
the chemical product used for spraying in Colombia. The situation
of these river communities is a matter of concern, as they use the
river for domestic purposes.
30. Some indigenous communities in the area, including the Awá,
are vulnerable and this is particularly worrying. In addition to the
impact of spraying, they complain that their rights are being
violated and that they are being subject to other abuses. They
protest that their rights to food and health have been affected by
spraying. Apparently, after spraying, the entire Sumac Pamba
community was displaced and did not return to their place of
origin. As a consequence, it appears that the local wildlife, which
provided a source of daily consumption, both for households and
for recreational purposes, has died and various activities have been
affected, as polluted water cannot be used. Spraying appears to be
destroying subsistence crops, diminishing soil quality and
reducing yields, affecting both the economic activities of
communities and the population’s access to adequate food. In
addition to the involuntary displacements caused by these
activities, attention is also drawn to the lack of access to public
537
services and the militarization of the border zone.”
6.108 In light of these findings, the UN Special Rapporteur recommended that
(a) “the Governments of Ecuador and Colombia appoint an independent
international commission to study the effects of aerial spraying on
indigenous border populations”;
(b) “binding measures” be adopted “to provide compensation for the
damages caused”; and
(c) “Colombia definitively halt the aerial spraying of illicit crops in the
538
border region with Ecuador.”
537
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous People, Rodolfo Stavenhagen: Mission to Ecuador (25 April-4 May
2006) (hereinafter “Report of the Special Rapporteur on the Rights of Indigenous People”), U.N.
Doc. A/HRC/4/32/Add.2, (28 Dec. 2006), paras. 28-31. EM, Vol. II, Annex 30.
538
Ibid., paras. 85-86.
2376.109 Mr. Stavenhagen’s observations are echoed in other contemporaneous
accounts. In July 2003, the inter-ministerial team of governmental officials that
conducted the verification mission to northern Sucumbíos (discussed above at
paragraphs 6.15, 6.58, and 6.87) visited the Kichwa community of Yana
Amarum. According to the report of the National Ombudsman for Indigenous
People:
“[the] leader of this community, said that 20 families live here, of
which there are 50 children. He affirmed that 2 spraying planes,
followed by three helicopters, cross into Ecuadorian territory
(violating national sovereignty). ‘They go by 2 or 3 times, flying
low, roughly at 30 meters in altitude, from 6 in the morning to 6 in
the evening. These planes drop a liquid above us, our huts and
school, and as a consequence they ruin our planted crops: maize,
yucca, plantain, and coffee. They contaminate the river and
environment; they turn around here. We are just recovering from
the effects of the sprayings of July, August and September 2002;
however, with last week’s spraying, we have to endure the impacts
again.’
The bilingual teacher, Rógulo Grefa, and four more families had to
abandon the community for fear of insecurity, sickness and more
problems. After the spraying, the same illnesses as in other
villages appeared and a chemical odor, which goes away in 5 days,
after a shower. River waters contain what seem to be oil stains.
Hunting and fishing have been stopped.” 539
6.110 According to a November 2005 report prepared by two NGOs that visited
the border regions of Esmeraldas Province in June of that year:
“With the contamination of various resources in these high-
biodiversity areas, various species of fauna have been reduced and
even disappeared from the affected areas. According to the Awá
indigenous people, one of the indigenous communities that has
been affected, ‘the animals have decreased, the leaves have dried
539Impacts in Ecuador by the Fumigations Carried Out in the Putumayo Province, 2003, op. cit.,
pp. 17-18. EM, Vol. IV, Annex 166.
238 up. The produce turns hard, the maize dries up leaving only the
cob. There are no fish anymore. We do not know if the
environment is being poisoned in the capitals. We indigenous
people do not feel like indigenous people without our lands’.
The environmental effects in these areas are particularly grave, not
only for the impacts to biodiversity, but also because there is a
greater presence of villages with people of ancestral races,
indigenous peoples and Afro-Ecuadorians, to whom the land, in
addition to being a space for cultural reproduction, is also a means
of agricultural production and self-subsistence. These areas have
been a natural provider which has given them animals to hunt and
fish, as well as a set of non-timber products such as medicinal
plants and other necessities to complement their nutrition diet.
Therefore, the environmental destruction caused by the
fumigations also impacts the life of the communities, their culture,
540
diet, and territory.”
B. W ITNESS STATEMENTS
6.111 Among the witness statements Ecuador has gathered are testimonies from
nine indigenous persons from across the border region, including members of the
Kichwa, Cofán and Awá communities 54. Some of these people reside within
540
Interamerican Association for Environmental Defense et al., Ecolex and AIDA Environmental
Report on the Impacts of the Fumigations under Plan Colombia (Nov. 2005), p. 5. EM, Vol. IV,
Annex 170.
541
Declaration of Witness 11, 16 Jan. 2009 (hereinafter “Witness 11 Declaration”). EM, Vol. IV,
Annex 199; Declaration of Witnesses 12, 16 Jan. 2009 (hereinafter “Witness 12 Declaration”).
EM, Vol. IV, Annex 200; Declaration of Witness 17, 16 Jan. 2009 (hereinafter “Witness 17
Declaration”). EM, Vol. IV, Annex 203; Declaration of María Blanca Chancosa Sánchez, 14 Jan.
2009 (hereinafter “Chancosa Declaration”). EM, Vol. IV, Annex 187; Declaration of Witness 26,
17 Feb. 2009, (hereinafter “Witness 26 Declaration”). EM, Vol. IV, Annex 210; Declaration of
Witness 27, 17 Feb. 2009, (hereinafter “Witness 27 Declaration”). EM, Vol. IV, Annex 211;
Declaration of Witness 28, 17 Feb. 2009, (hereinafter “Witness 28 Declaration”). EM, Vol. IV,
Annex 212; Declaration of Witness 29, 16 Jan. 2009, (hereinafter “Witness 29 Declaration”).
EM, Vol. IV, Annex 213; and Declaration of Witness 31, 27 Feb. 2009, (hereinafter “Witness 31
Declaration”). EM, Vol. IV, Annex 215.
239recognized indigenous territories 542, others live in indigenous communities
543
located outside official territories , and still others live in mixed communities
544
together with settlers . All describe their own, first-hand experiences.
6.112 Witness 31 is a member of the Cofán community of Sukie Kankhe located
close to the San Miguel River inside the Cofán Territory. He is also a shaman
(“curaga” in the Cofán language) and a father of four. He described his
community in a manner that conveys the uniqueness of indigenous territory:
“There are two houses in my community and nine of us live there.
The nearest village to our community, on the Ecuadorian side, is
the Barranca-Bermeja community, to get there we have to travel
two hours by canoe. There is another way out toward a small
village on the Colombian side called San José; to get there, we
have to walk for an hour and a half. The school that is in San José
is the closest one. I was born in Sukie Kankhe, in the Ecuadorian
jungle on the banks of the San Miguel River and I have lived here
all my life, as have the other members of my community. We
have been here for generations and generations, from my great-
great-grandfather and even earlier. Our dead are also in this place,
in the cemetery in the community. In the community, we also
have our sacred places, the house where the ceremonies take place,
which in Cofán is called yaje tsa’o , and the sown field of the
sacred plant. Only the curagas can pass through these places. The
yaje tsa’o is about five hundred meters from the San Miguel River,
it takes about five minutes to walk to the river by foot.” 545
542Witness 26 Declaration, op. cit. EM, Vol. IV, Annex 210; Witness 27 Declaration, op. cit.
EM, Vol. IV, Annex 211; Witness 29 Declaration, op. cit. EM, Vol. IV, Annex 213; Witness 31
Declaration, op. cit. EM, Vol. IV, Annex 215.
543
Witness 28 Declaration, op. cit. EM, Vol. IV, Annex 212
544Witness 11 Declaration, op. cit. EM, Vol. IV, Annex 199; Witness 12 Declaration, op. cit.
EM, Vol. IV, Annex 200; Witness 17 Declaration, op. cit. EM, Vol. IV, Annex 203.
545Witness 31 Declaration, op. cit. EM, Vol. IV, Annex 215.
2406.113 Witness 40, himself Awá, was a health worker between 2002 and 2007 in
six Awá communities located within the Awá Territory , which straddles the
border between Carchi and Esmeraldas Provinces. He described the importance
of nature in Awá culture:
“Nature is very important in our culture. For us, the earth is a
mother that gives us life, for this reason we call it mother earth.
We respect it like a mother and we look after it, we treat it well,
we do not throw trash or waste, we reuse and bury everything we
use. In the earth, we find plants, animals and the water that give
us life. We also have a special relationship with the water from
the river and its streams. Our sacred places are the waterfalls. In
the reserve, there are several waterfalls in the streams and small
rivers that originate from the Mataje River. We use them in our
traditional medicine. For example, there is a disease known as
duende and its healing is done in the waterfall, as a cleansing
ritual.”46
1. Plants and Animals
6.114 In light of the indigenous peoples’ deep connection to nature, anything
that disrupts the natural order affects them profoundly. That is exactly what the
fumigations have done. Ms. María Blanca Chancosa Sánchez is Kichwa and a
leader of the Confederation of Indigenous Nationalities of Ecuador (“CONAIE”
per the Spanish initials). She testified:
“The consequences of repeated sprayings have had particularly
serious effects on the indigenous peoples who live around the
border, including the Awá, Cofán, Huaorani, Shuar, Secoya,
Siona, Chachi, and Kichwa. The relationship with Mother Earth is
central to the indigenous people. They feel as if their land is sick
because they no longer have plants for their survival. The plants
feed them. The plants are also medicines that give energy and can
prevent a disease. When the plants get sick, people also get sick.
546Declaration of Witness 40, 20 Feb. 2009 (hereinafter “Witness 40 Declaration”). EM, Vol. IV,
Annex 223.
241 In those areas, because of the culture and isolation, people go to
the folk healer of the community, who is called a yachak, who
uses certain plants to treat certain pains. Following the sprayings,
several of the plants used by folk healers stopped growing and
were damaged. They can no longer cure people with these plants.
We were very worried because in some indigenous communities
the yachack have left their communities, since the plants with
which they practiced no longer worked, putting the traditional life
and health of these communities at serious risk.
Plants also form part of our traditions that guide our daily life.
Yucca is a fundamental element for the indigenous people, of their
diet and of their life. But several communities have seen the yucca
drying up until it died a few days after the repeated sprayings.
Chicha is made from yucca, it is an energizing beverage that we
use to go to work and that we drink in traditional ceremonies.
After the fumigations, yucca becomes sick and hard. It does not
soften when cooked and it cannot be eaten or used as a drink.
There are other very important herbs that are required in order to
drink a tea named guayusa. Every morning, the family gathers to
drink the tea, which is used to protect them from bad energies and
snake bites. During that hour, the family gathers to share the
visions they had during the night and to prepare themselves,
together, for what the day has in store for them. They feel
protected by this drink. Indigenous people from some of the
villages in the border have informed us that this plant no longer
grows as much and it 547longer has the same effect. It got sick
after the sprayings.”
6.115 Witness 31, the Cofán “ curaga” from the Cofán Territory whose
declaration was in paragraph 6.112, also described the consequences of the
fumigations by indigenous peoples. He stated:
“The sprayings also affected the plants. In the community, we had
planted maize, yucca, plantain, and papaya. The planes with their
smoke destroyed everything, the crops, the woodland, the jungle.
The effects on the plants were noticed after two days when they
starting changing color, and three days later they looked dry.
547Chancosa Declaration, op. cit., paras. 3-4. EM, Vol. IV, Annex 187.
242 After a few days of spraying, with the wind and the rain, the leaves
in the virgin jungle started to fall off and one could see the change,
because before everything was green, and after the sprayings one
could see the leaves falling off and the dry branches. For the
Cofán, nature is very important, she provides us with everything
that we need to live, plants such as yoko and yaje. If nature gets
sick, we also get sick; our life depends on nature. That is why, we,
the Cofán, respect nature, we do not think of destroying it, because
looking after nature is looking after ourselves. But the sprayings
came without us being able to avoid them, it was something that
we were not familiar with and against which we could not defend
ourselves; they affected the jungle and with it our lives and our
traditions. We, the curagas or shamans, have sacred rituals such
as the ayahuasca, which we perform with plants that we used to
find in our community; but after the sprayings, the plants that are
near our community and the river are now useless. … Before, all
the communities had sown fields of medicinal plants and they
were near the house, even the plants that could not be sown were
near and we knew where to find them. Now, people have to walk
up to five hours to get them, in order to be able to practice the
rituals and traditional medicine. The withering and dryness,
caused by the sprayings, have seriously affected our traditions and
548
the balance of our community.”
6.116 Witness 26 is a Cofán mother of eight who also resides in the Cofán
Territory. She described how the disruption caused by the fumigations has forced
her family apart:
“The crops were also affected, now there is hardly any work; I can
no longer help provide for my children and their education. The
plants no longer produce as they used to. When I harvested the
yucca plant to cook meals, I realized that the yucca was damaged;
it is no longer the same. The yucca is normally white inside, but
after the sprayings, the yucca seemed as if it were stained inside,
before the sprayings this was not seen. From three or four small
farms, it can be that only one yucca is good, which is why the
community shares everything; but there is more hunger, there is
not enough food for everyone. If we do not help each other, we
548Witness 31 Declaration, op. cit. EM, Vol. IV, Annex 215.
243 will not be able to survive all of this that is happening to us. We
used to live close to the border and then we moved to live in the
interior of Bermejo River, thinking that this way we were going to
be safe, but we were still affected. After the sprayings, my
children had to leave to find work; some work in Coca, in the
province of Orellana, others in Lago Agrio and others in General
Farfán. The family has separated, now I live with only one
daughter. All this displacement, which has been caused by the
sprayings, has very much affected our community, we used to live
near the border in the land of the Cofán, but we left there, moving
away from the border and our community, fleeing from the
sprayings.” 549
6.117 The experience of residents of the Awá Territory has been similar.
According to Witness 40, the Awá health worker quoted above:
“The third time they sprayed was fatal for our community. The
previous two times we saw the planes spraying the border in
Colombia, but this time they crossed to Ecuadorian territory, Awá
territory. It was probably five days later that some hectares of the
natural forest, near the Mataje River, died. Three days later the
plants began to dry up and fall off, as if they were burned. The
leaves fell off the plants and all the branches died. All the plants,
big and small, were destroyed. Several species of wild plants that
were in that hectare died. I estimate that at least some thirty
species of plants that died were used by us in the Awá traditional
medical treatments. They were used by the shamans to cure the
sick in the community. For example, the lengua de vaca was used
to cure a disease known as chutun, which is a spiritual disease.
Other sicknesses treated by the shaman are: shutu, duende,
malmiento, espanto, and ojeado de piedra. The shamans treat all
these sicknesses with medicinal plants found in nature near the
community, and that were affected by the sprayings. This time
they destroyed completely the production in the community. We
no longer had anything to eat. Our diet depended on the plants that
549Witness 26 Declaration, op. cit. EM, Vol. IV, Annex 210.
244 we sow and those t550 are in nature, which have been affected by
the fumigations.”
6.118 Indigenous communities located outside the reserves have also been
affected. Witness 28 is a resident of the Kichwa community of Yana Amarum
located along the banks of the San Miguel River in Sucumbíos. After describing
the devastation wreaked on the village’s yucca crops, he stated:
“Finally, in 2004, I had to leave the community to work in the city
of Puerto Nuevo, because after the sprayings, there was nothing to
harvest in Yana Amarum, and life had become too hard. I have
always earned a living by selling the crops that we grew and the
land produced, but now the land no longer produces as it used to,
and I had to look for work doing something different from I what I
have always done. Sometimes, I work in the boats in Puerto
Nuevo, helping with the cargo. There one can still find a job
because of the commerce that exists there, but in my community
we only live off the crops, that is why the sprayings affect us so
much in the country. I was not the only one to leave. Of eighteen
families, four left i551earch of a better life, farther from the border
and their problems.”
6.119 The hamlet of San Francisco 2 is located roughly 25 kilometres east of
the Cofán Territory in Sucumbíos and is home to about 20 Kichwa families
together with residents of mixed descent. As elsewhere in the border area, the
families in San Francisco all live below the national poverty line. There is no
electricity and there are no telephone lines. The closest health centre is located in
General Farfán, which is accessible from San Francisco only by canoe. Witness
11, a Kichwa and life-long San Francisco 2 resident, testified that the fumigations
forced some Kichwa families to abandon their homes:
550Witness 40 Declaration, op. cit. EM, Vol. IV, Annex 223.
551
Witness 28 Declaration, op. cit. EM, Vol. IV, Annex 212.
245 “Also, shortly after the smoke of the planes visited us for the first
time, and every time after that, all the plants dried up. We had
planted maize, rice, cocoa, and plantain on our farm. Since we
could no longer eat from our farm, we had to ask our relatives for
some money to buy food in town. Now that the planes have not
sprayed here for a while and the soil is getting healthy, we have
planted again. The plants are growing but not very well. The
yucca still has problems; it comes out of the skin rotted with black
spots. Some Kichwa families have abandoned their homes for fear
of problems from the sprayings. I, too, thought of leaving the
border but I stayed because my whole family is here.” 552
6.120 In addition to the harm to crops and natural flora of the border region, the
indigenous witnesses also described extensive damage to both domestic animals
and wildlife. Indeed, because many of the indigenous communities are located
within primary forest and jungle, and because indigenous cultures emphasize a
connection to the natural world, indigenous witnesses observed notably greater
harms to the natural fauna of the region than the non-indigenous witnesses cited
in Section II above.
6.121 In the Cofán Territory (which overlaps the Cofán-Bermejo Ecological
Reserve), the shaman for the Sukie Kankhe Cofán community, Witness 31,
testified that in addition to plants:
“[t]he animals were also affected. After the sprayings, we saw
dead animals. When the birds ate the fruits contaminated by the
sprayings, such as the plantain, they would get sick. The chickens
that I had would vomit everything they ate, shake and then die,
now I do not have many chickens. We also saw many of the
jungle birds become stiff and fall dead to the ground, we saw this
about four days after the spraying. Once, after the spraying, we
hunted a guanta and we could see that its hair had fallen off.
Before, we used to go fishing, but now we hardly fish, because
552Witness 11 Declaration, op. cit. EM, Vol. IV, Annex 199.
246 there are now almo553no fish in the river, as if something came and
destroyed them.”
6.122 Witness 29 was particularly well-suited to observe the long-term effects
of the fumigations. With the assistance of a Cofán foundation, he had gone to
Quito to study for several years. Upon returning to his home community of Avie
(also located in the Cofán Territory) he witnessed a profound change. He stated:
“When we were kids, my older brothers and I used to go hunting
with the shotgun for paca, guatusa, coati, panguanas, guan; and,
with the blowgun for muchileros, small parrots and other birds.
With a fishnet and hook, we used to fish bocachico, doradas, shad
and picalones. Last July, I went to Avie. There are not as many
animals as there used to be in the jungle near the river. I saw the
change after spending so much time in Quito. I used to be worried
about my parents and siblings because in Quito I would hear in the
news about the sprayings. My father would tell me that my
siblings would get sick during the spraying periods because, while
I was in Quito, they used to tell me that the planes continued to
554
spray. The customs of my people have changed.”
6.123 Witness 28, the Kichwa from Yana Amarum quoted above, offered a
similar account:
“The effects were also observed in some of the wildlife. Yana
Amarum is located near a hunting-and-fishing reserve. Following
the sprayings, those who lived off hunting no longer found the
animals they used to hunt, such as the cerillo (a mountain pig),
monkeys, armadillos, and guantas. I used to fish everyday; and,
one day after the first spraying, I went fishing, as always, but what
I found were dead fish in the estuary, floating in the water whitish
553Witness 31 Declaration, op. cit. EM, Vol. IV, Annex 215.
554
Witness 29 Declaration, op. cit. EM, Vol. IV, Annex 213.
247 and swollen. I saw that the fish were no longer safe to eat and I
returned home empty handed.” 555
6.124 Similar observations were made in the Awá Territory . According to
Witness 40, the Awá health worker:
“We often go fishing. After the spraying, when we went fishing,
we noticed that the fish were sick. The zavalete had bumps on the
skin like blisters, their eyes looked pale, and the skin, which is
usually a lead-gray color, turned to a more redish color. The
mojarras had on their tail and fins hard tiny bumps, and their eyes
also looked pale. We thought that was very strange, we had never
seen anything like it before. This happened more to the zavaletas
and mojarras, which are weaker than the other fish in the river.
We did not eat these fish because they seemed sick and we thought
it would not be healthy to eat them. We decided that it would be
best to bury them556 prevent other animals from eating them and
becoming sick.”
6.125 Witness 41, also from the Awá Territory, told of seeing dead animals
while hunting in the jungle:
“Aside from the domestic animals, the forest and the animals in
the jungle were also affected. After the spraying, I went with my
grandfather to a place where there are several hectares of primary
forest. There one can hunt animals such as the monkey, spotted
paca and the guatin. One can use a shotgun to hunt, but the elders,
like my grandfather, also know how to set traps to catch the
animals. When we went to the primary forest to hunt after the
spraying, we noticed that several natural trees had dried up and
were dead. We also saw some dead animals such as deer, guatin
and sloth. I was very surprised to see these animals dead.” 557
555Witness 28 Declaration, op. cit. EM, Vol. IV, Annex 212.
556
Witness 40 Declaration, op. cit. EM, Vol. IV, Annex 223.
557Declaration of Witness 41, 20 Feb. 2009 (hereinafter “Witness 41 Declaration”), para. 6. EM,
Vol. IV, Annex 224.
248 2. People
6.126 As was the case in non-indigenous communities throughout the border
zone, the indigenous people also suffered significant adverse health effects as a
result of the fumigations. Witness 31 (the Cofán “ curaga” from the Cofán
Territory), for instance, stated:
“That smoke from the planes fell on my house and also on my
body; at that moment, I felt as if my skin was going numb, I felt
my throat become dry and I got a cough. The effect was immediate
and it happened to most of my family. My wife and children were
also in the community when it happened, the smoke also fell on
their bodies and later they had some terrible bumps, even on their
heads, but mostly on the thorax. Everyone developed the bumps,
but they affected the children the most. The problem with the
bumps was not just the result of what fell on our bodies, but also
of what was left contaminated. For example, we wash our clothing
in the river and later we hang it to dry in the sun, which leaves it
exposed. It was there when the smoke also fell on the clothes and
that continued to affect our skin. That lasted for about two weeks,
first we had small bumps and then a week later they burst. The
bumps itched a lot. … In addition, the children developed
stomachaches, vomiting and diarrhea. That started about two days
after the sprayings and lasted for two days; the children could not
558
eat or drink anything.”
6.127 The fumigations have also adversely affected Awá communities in the
Awá Territory. In his capacity as a health worker in the territory between 2002
and 2007, Witness 40 visited Awá communities, met with residents, gave health
lectures, and coordinated with medical teams from the San Lorenzo Hospital
(many hours’ journey to the south) to arrange visits to the area. He testified that
from the moment fumigations in the region began:
“the problems started in the community. A few days later, I was
working at the health post, it was morning and three children came
558Witness 31 Declaration, op. cit. EM, Vol. IV, Annex 215.
249 in sick with diarrhea, vomiting, high fever, and stomach ache. The
children were between two and three years old. After a few days,
the adults started coming in with fever, vomiting, headache,
diarrhea and stomachache. After that, people continued to come to
the health post with the same symptoms. Some people also had
spots on their skin. We were concerned because everyone
exhibited the same symptoms, which we had never seen before.
Now and then, children would come to the health post with
diarrhea or the flu, but they were always separate and simple
episodes, it had never been so close one after the other, so
widespread, so serious, or with that combination of symptoms. I
tried to treat them with medicinal plants but it was not effective.
The disease was too strong and rare, beyond our knowledge and
medicinal traditions. For this reason, we had to take these people
to the hospital in San Lorenzo. The situation was so severe that
we had to make the effort to get these people out of the community
to San Lorenzo, where the nearest hospital is located, in spite of
access and transportation problems. We had to walk for five hours,
carrying the sick people on our backs, to Guadualito, which is the
only community that has a road, and from there travelled by car
for an hour and a half to San Lorenzo.” 559
6.128 Witness 41, also Awá, provided a similar account:
“Before the spraying, we were healthy. But after the spraying,
many people in my community became sick. Some of the people
in the community had bumps all over their bodies. It was strange,
I had not seen that before. Also, some of them had white spots on
their skin and hives. Even I had some white spots on my arms.
People also suffered from headaches, stomach aches and vomiting.
… When an Awá person gets sick, first he goes to a healer, who is
a type of a traditional doctor. The healer treats people with natural
medicines. The healer uses, above all, plants to cure people, for
example, a plant known as lengua de vaca , which grows in the
forest outside the community. Sometimes, this natural medicine
cures and sometimes it does not. If he is not cured, then he can
visit the health promoter in the community, an Awá who is trained
in Western medicine. If he still does not get better with the
treatments provided in the community, people go to the hospital in
559Witness 40 Declaration, op. cit. EM, Vol. IV, Annex 223.
250 San Lorenzo. We have no roads in the Awá community, so we can
only go by foot. To get to San Lorenzo, one has to walk around
three hours to reach the Mataje River, and then take a canoe. After
an hour in the canoe, one arrives at a mestizo community known as
El Pan and from there, it takes about two hours by car to get to San
Lorenzo. Tha560s how people affected by the sprayings
proceeded.”
6.129 In San Francisco 2, life-long resident Witness 11, a Kichwa, stated that
two of her young children died as a result of fumigation-induced vomiting and
diarrhea:
“Shortly after the sprayings, my three-month-old baby became
sick. Suddenly, she had diarrhea, vomiting and fever. I did not
know what to do because she had never been sick like this before,
and many children in the community were sick with the same
thing. She stopped drinking my breast milk and died on twenty-
five September, two thousand and one. The rest of us in the
family had a rash. They were little bubbles that would burst. …
After the sprayings, things improved but it was not the same as
before. When the planes returned, the diseases returned. Two
years later, during a period of spraying, my two-month-old
daughter died. She was born fat and pretty, and before the
sprayings she never had any problems. But after the sprayings, she
became sick with the same thing that my other daughter had, and
that many children of my neighbors had every time the plane came
-- vomiting, diarrhea and fever. I had no money as to go to the
doctor, and she died on ten September, two thousand and three.” 561
6.130 Witness 12, another Kichwa resident of San Francisco 2 gave a similar
account:
“[A] few days after the fumigations, I felt uneasy and then I started
itching a few days later, which disappeared a few weeks later. I
got dizzy and then I vomited. My children suffered from headache,
560Witness 41 Declaration, op. cit., paras. 3-4. EM, Vol. IV, Annex 224.
561
Witness 11 Declaration, op. cit. EM, Vol. IV, Annex 199.
251 diarrhea and vomiting that lasted several weeks. I, too, suffered
from headaches then and even now, there are days that I still get
them. Many families were affected. I remember that at least four
babies in my community died during that period. They did not
even last a week after the sprayings. They died within days of
each other.”562
Section V. Conclusions
6.131 In this chapter, Ecuador has shown that Colombia’s persistent aerial
spraying of chemical herbicides along its long riverine border with Ecuador has
caused serious harm to people, and to wild and domestic plants and animals in
Ecuador. It has also inflicted significant injury on the indigenous populations that
live along the international frontier. The harms reported are consistent with the
effects one would expect from exposure to improperly applied herbicides, all as
described in Chapter V.
6.132 These harms, significant in themselves, are compounded by the already
precarious nature of life in the border area. As discussed in Chapter II, the area is
characterized by general poverty and under-development, including a lack of
access to medical care, that have exacerbated the sprayings’ effects. In many
cases, the lasting physical effects of the sprayings, including the loss of crops and
animals, have forced these poor subsistence farmers, who were struggling to
make do even before the fumigations began, to leave their land in search of more
healthy and secure homes.
6.133 The effects on Ecuador’s unique indigenous communities are
compounded further by the unique cultural ties that such communities enjoy to
562
Witness 12 Declaration, op. cit. EM, Vol. IV, Annex 200.
252nature. As recounted in the indigenous testimonies cited above, when nature is
made sick -- as the fumigations have done -- the communities themselves are
sickened, literally, culturally and spiritually.
6.134 In the following three chapters, Ecuador will demonstrate that the
profound harms that Colombia’s aerial fumigation programme has caused in
Ecuador constitute internationally wrongful acts in violation of a broad array of
fundamental international norms.
253 CHAPTER VII.
VIOLATION OF TERRITORIAL SOVEREIGNTY Section I. Colombia Has Violated Ecuador’s Territorial Sovereignty
7.1 As described in Chapters II, III and VI, Colombia has caused the deposit
of toxic herbicides on the territory of Ecuador (as well as their dispersion in
Ecuador’s airspace) in quantities that are significant and harmful 56. Ecuador has
never consented to such deposits and dispersal, either directly or indirectly. To
the contrary, Ecuador has consistently objected to Colombia’s aerial spraying
operation in border areas 564. By allowing these deposits caused by aerial spraying
in border areas, Colombia has violated its international obligations to respect the
territorial sovereignty of Ecuador. These obligations arise under general
international law. They also arise by operation of specific treaties, including in
particular the 1988 Narcotics Convention, which provides expressly in Article 2
that
“The Parties shall carry out their obligations under this Convention
in a manner consistent with the principles of sovereign equality
and territorial integrity of States and that of non-intervention in the
domestic affairs of other States.” 565
7.2 Colombia’s actions have violated Ecuador’s right to determine for itself
what acts may take place within its territory, and in particular Ecuador’s right to
determine the level and nature of any harmful pollution to which its territory,
people and natural resources will be exposed. The spraying and drift of
563
See, e.g., supra, Chap. II, Sec. II. “Colombia’s Aerial Sprayings”; Chap. III. “The Diplomatic
History of the Dispute”; Chap VI. “Jurisdiction.”
564See, e.g., supra , Chap. III, Sec. I. “Ecuador’s Early Protests and Requests fro information:
2000-2002”; Chap. III, Sec. III. “Colombia’s Adherence to the Fumigation Programme Over
Ecuador’s Continued Opposition and the Involvement of Multilateral Organizations: 2006-2007.”
565United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances (hereinafter “1988 Narcotics Convention”) (20 Dec. 1988), Art. 2. EM, Vol. II,
Annex 4.
257herbicides onto the territory and natural resources of Ecuador further violate
Ecuador’s permanent sovereignty over its natural and biological resources.
A. V IOLATION OF TERRITORIAL S OVEREIGNTY
7.3 The principle of territorial sovereignty is a cornerstone of every State’s
rights under international law. As long ago as 1949, in its very first Judgment,
this Court observed: “Between independent States respect for territorial
566
sovereignty is an essential foundation of international relations.” Four decades
later, the Court recognized “the fundamental principle of State sovereignty on
567
which the whole of international law rests” .
7.4 The Court’s jurisprudence rests on long-established practise and
principles. A former President of the Permanent Court of International Justice,
acting as sole arbitrator in the Island of Palmas case, observed that “[t]erritorial
sovereignty, as has already been said, involves the exclusive right to display the
activities of a State”68. Arbitrator Huber stated:
“Sovereignty in the relations between States signifies
independence. Independence in relation to a portion of the globe
is the right to exercise therein to the exclusion of any other state,
569
the functions of the State.”
566
Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 4, p. 35.
567Military and Paramilitary Activities (Nicaragua v. United States) , Judgment, I.C.J. Reports
1986, p. 14, para. 263.
568Island of Palmas (The Netherlands v. United States), Reports of International Arbitral Awards,
Vol. II (1949), p. 829, p. 839.
569Island of Palmas, p. 838.
2587.5 The tribunal in the Lake Lanoux case observed, in relation to a treaty
concerning a shared watercourse, that:
“Territorial sovereignty plays the part of a presumption. It must
bend before all international obligations, whatever their origin, but
only before such obligations.” 570
7.6 The Charter of the United Nations affirms the principle of sovereign
571
equality of all of its Members . The Declaration of Principles of International
Law, adopted by the United Nations General Assembly in 1970, elaborates on the
indicia of sovereignty and declares that all States enjoy sovereign equality,
including the following elements: “(b) Each State enjoys the rights inherent in
full sovereignty … (d) The territorial integrity and political independence of the
States are inviolable” 572.
7.7 Leading commentators have affirmed that respect for the sovereignty of a
State -- and the consequences of any failure to respect such sovereignty -- are
reflected in the corpus of rules of international law. Professor Brownlie, for
example, notes that “[t]he sovereignty and equality of states represent the basic
constitutional doctrine of the law of nations” 573. Oppenheim’s International Law,
notes that “[a]ll states are under an international legal obligation not to commit
any violation of the independence, or territorial or personal authority, of any other
570Lake Lanoux (France v. Spain) , XII Reports of International Arbitral Awards, (1957), p. 281,
p. 364.
571
Charter of the United Nations, Art. 2(1).
572United Nations General Assembly Resolution 2625 (XXV) Declaration of Principles of
International Law concerning Friendly Relations and Cooperation among States in accordance
with the Charter of the United Nations (24 Oct. 1970).
573Ian Brownlie, Principles of Public International Law (6th ed., Oxford U. Press, 2003), p. 287.
259state”574. The fundamental importance of respect for sovereignty and territorial
integrity was affirmed by the Court in the Corfu Channel case. The Court ruled
that the United Kingdom had violated the territorial sovereignty of Albania by
conducting a minesweeping operation in Albanian territorial waters,
notwithstanding the United Kingdom’s argument that the operation was one of
extreme urgency that it considered itself entitled to carry out without the consent
575
of any other State or organisation . The Permanent Court of International
Justice, in the Lotus case, stated that “the first and foremost restriction imposed
by international law upon a State is that -- failing the existence of a permissive
rule to the contrary -- it may not exercise its power in any form in the territory of
576
another State” . In the case concerning Armed Activities on the Territory of the
Congo, the Court also recognised that violation of sovereignty gave rise to a
distinct cause of action in international law, ruling that “Uganda has violated the
sovereignty and also the territorial integrity of the DRC.” 577
7.8 Territorial sovereignty incorporates the right of each State to determine its
own economic, social and environmental policy, subject to its international
obligations. Article 3 of the 1933 Montevideo Convention on the Rights and
Duties of States provided that:
“The political existence of the state is independent of recognition
by the other states. Even before recognition the state has the right
to defend its integrity and independence, to provide for its
conservation and prosperity, and consequently to organize itself as
it sees fit, to legislate upon its interests, administer its services, and
574Sir Robert Jennings and Sir Arthur Watts, Oppenheim’s International Law, Vol. I (9th ed.,
Longman, 1992), p. 382.
575
Corfu Channel, I.C.J. Reports 1949, pp. 33-34.
576The Case of the S.S. “Lotus”, 1927, P.C.I.J. Series A, No. 10, p. 18.
577Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 201, para. 165.
260 to define the jurisdiction and competence of its courts.
The exercise of these rights has no other limitation than the
exerci578of the rights of other states according to international
law.”
In addition, Article 8 provides that “[n]o state has the right to intervene in the
internal or external affairs of another”. This obligation is reaffirmed in Article
2(2) of the 1988 Narcotics Convention, one of the treaties establishing the
jurisdiction of the Court 579.
7.9 A State’s sovereignty over its territory also expresses its right, subject to
any international obligations that it has entered into, to determine its own level of
protection for the environment and for human health 580. That includes
establishing acceptable or permissible types and levels of pollution. This
principle, and in particular its relationship to acts that may affect human health
and the environment, was articulated before the Court as early as 1973 by
Australia, in the application it filed in the Nuclear Tests case. Australia invoked
“the right of … its people, in common with other States and their peoples, to be
free from” certain forms of pollution, and submitted that deposit of radioactive
pollution and its dispersion in a State’s airspace without that State’s consent
578Montevideo Convention on the Rights and Duties of States, (26 Dec. 1933), entered into force
26 Dec. 1934, OAS Treaty Series No. 37, Art. 3, available at
http://www.oas.org/juridico/english/sigs/a-40.htmlBoth Ecuador and Colombia are parties to the
Convention.
5791988 Narcotics Convention, op. cit., Art. 2(2).
580
For example, in the context of the World Trade Organization Agreement on the Application of
Sanitary and Phytosanitary Measures, the Appellate Body has observed that “it is undisputed that
WTO Members have the right to determine the level of protection of health that they consider
appropriate in a given situation”. European Communities – Measures affecting Asbestos and
Asbestos-containing Products, Report of the Appellate Body, WT/DS135/AB/R (12 Mar. 2001),
para. 168.
261violated the State’s “sovereignty over its territory” and impaired the State’s
581
“independent right to determine what acts shall take place within its territory” .
7.10 Ecuador’s territorial sovereignty and integrity have been repeatedly
violated by the deposit of toxic herbicides on its territory by Colombia. In the
Nuclear Tests case, the Court indicated interim measures of protection to preserve
rights claimed by New Zealand in respect of the deposit of radioactive fall-out in
its territory. New Zealand claimed, inter alia, that atmospheric nuclear testing by
France violated New Zealand’s right not to be subject to radioactive materials
being deposited on its territory from activities authorised by other States and
occurring outside its territory. New Zealand’s claimed rights included the
protection of its airspace and territorial waters from the consequences of nuclear
testing, and the right to ensure that no radioactive materials should enter New
Zealand’s territory so as to cause harm, including apprehension, anxiety and
582
concern to its people . While the Court did not proceed to decide the case on
the merits, it ultimately relied upon unilateral declarations by France guaranteeing
the end of atmospheric nuclear testing in the region to determine that no further
pronouncement on New Zealand’s claim was necessary, the object of the claim
having disappeared 583.
7.11 Herbicides sprayed by and under the control or authorisation of Colombia
have been deposited and dispersed in the territory and airspace of Ecuador.
Spraying has been conducted so close to the border that it was known to
581Application instituting proceedings submitted by Australia (9 May 1973), para. 48, in Nuclear
Tests (Australia v. France), Pleadings, Oral Arguments, Documents, Vol. 1, p. 14.
582
Nuclear Tests (New Zealand v. France), Request for the Indication of Provisional Measures,
Order, I.C.J. Reports 1973, p. 135.
583Ibid., p. 457.
262Colombia that it was likely -- if not inevitable -- that the toxic herbicide spray
would cross the international boundary so as to reach and adversely affect
Ecuador 58. Indeed, the evidence indicates that aircraft involved in the spraying
have flown right up to, along, and even across the Ecuadorian border so that very
little drift, if any, is required for the spray to reach Ecuadorian territory. Many
people living on the Ecuadorian side of the border have witnessed the spray drift
toward and envelop their crops and homes, and have often been caught in it
themselves 585. On occasions when the spray aircraft have been seen to fly into
and over Ecuadorian territory, they appear to have continued spraying, depositing
586
herbicides directly on and around people, plants and animals in Ecuador .
7.12 Colombia is causing to be sent into Ecuador toxic herbicides that are
expressly designed with the intention of destroying plant life. As described in
Chapters V and VI, these chemicals are known to entail risks of significant
adverse effects on human, animal and plant health: the evidence shows that these
effects have been realised in Ecuador. The harmful effects of the spray endured
by Ecuadorian border communities are set out in detail and documented in
Chapter VI of this Memorial: it has damaged agricultural crops and domestic
animals in Ecuador, and adversely affected agricultural land and productivity 587;
it has caused harm to the health of Ecuadorians living in the affected region 588;
584See, e.g., supra , Chap. II, para. 2.37; Chap. III. “The Diplomatic History of the Dispute”;
Chap. VI, para. 6.23 & Map 5, para. 6.30 & Map 6, para. 6.36 & Map 7.
585
See all witness statements in annexes 189-224.
586See, e.g., supra, Chap. VI, paras. 6.24-6.25, 6.109; Declaration of Witness 4, 22 Dec. 2008.
EM, Vol. IV, Annex 192; Declaration of Witness 5, 16 Jan. 2009. EM, Vol. IV, Annex 193;
Declaration of Witness 13, 15 Jan. 2009. EM, Vol. IV, Annex 201.
587See supra Chap. VI, Sec. II. “The Harm to Plants” & Sec. III. “The Harm to Animals”.
588See supra Chap. VI, Sec. I. “The Harm to People”.
263and it has damaged the environment and natural resources of Ecuador, including
589
water resources and biological diversity .
7.13 As a territorial sovereign, Ecuador has, subject to any obligations arising
under international law, the exclusive right to determine what acts take place in
its territory. It also has the exclusive right to determine whether -- and if so, to
what extent -- its population should be exposed to the risks of polluting or other
harmful effects resulting from the spraying of the herbicides. Ecuador has not
consented to the deposit and dispersal of herbicides of this kind on its territory.
Colombia’s actions are unacceptable and plainly violate the territorial sovereignty
of Ecuador.
7.14 International law specifically recognises the permanent sovereignty of
States over their natural resources, including biological resources, in the context
of the right to territorial integrity. The United Nations General Assembly has
repeatedly confirmed the principle of permanent sovereignty over natural
590
resources . The Preamble to the 1992 Convention on Biological Diversity
reaffirms that States have sovereign rights over their biological resources, and
591
Article 15 recognises the sovereign rights of States over their natural resources .
Article 8(1) of the 1997 Convention on Non-Navigational Uses of International
589See, e.g., supra, Chap. VI, paras. 6.86-6.87, 6.91, 6.96, 6.104, 6.107, 6.117, 6.120-6.125.
590
For example, U.N. General Assembly Resolution 1803 (XVII), Permanent Sovereignty over
Natural Resources (14 Dec. 1962); U.N. General Assembly Resolution 3281 (XXIX) Charter on
Economic Rights and Duties of States (12 Dec. 1974).
591
Convention on Biological Diversity (22 May 1992 ), entered into force on 29 Dec. 1993.
Colombia and Ecuador are parties to this Convention. Art. 3 of the Convention provides that
“States have, in accordance with the Charter of the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other States or of areas beyond the limits of
national jurisdiction.”See infra Chap. VIII, para. 8.19.
264Watercourses reflects the importance of the principles of sovereign equality and
territorial integrity. In Armed Activities on the Territory of the Congo the Court
recalled that:
“the principle of permanent sovereignty over natural resources is
expressed in General Assembly resolution 1803 (XVII) of 14
December 1962 and further elaborated in the Declaration on the
Establishment of a New International Economic Order (General
Assembly resolution 3201 (S.VI) of 1 May 1974) and the Charter
of Economic Rights and Duties of States (General Assembly
592
resolution 3281 (XXIX) of 12 December 1974)” .
The Court recognized “the importance of this principle” and confirmed that it is
593
“a principle of customary international law” .
7.15 The herbicide spraying carried out by Colombia has had significant and
verifiable effects on the natural resources of Ecuador. These effects include
pollution of watercourses and drinking water, damage to forests and natural flora
594
and fauna, loss of biological diversity, and harm to natural ecosystems . These
impacts and effects go well beyond what is permissible under the 1988 Narcotics
Convention, and constitute significant transboundary harm in violation of
international law as set out in Chapter VIII. For these reasons, the aerial spraying
of toxic herbicides in border areas has violated Ecuador’s permanent sovereignty
over its natural and biological resources.
7.16 In accordance with international law, airspace superjacent to a State’s land
territory is part of that State’s territory. As such, other States may use such
59Armed Activities on the Territory of the Congo, I.C.J. Reports 2005, p. 201, para. 244.
593
Ibid.
594See supra Chap. VI, Sec. II. “The Harm to Plants”, Sec. III. “The Harm to Animals”; see also
paras. 6.86-6.87, 6.91, 6.96, 6.104, 6.107, 6.117, 6.120-6.125.
265 595
airspace only with the agreement of the territorial sovereign . In the Military
and Paramilitary Activities case, the Court ruled that:
“The principle of respect for territorial sovereignty is also directly
infringed by the unauthorised overflight of a State’s territory by
aircraft belonging to or under the control of the government of
another State.”596
7.17 Thus, in addition to the violation of territorial sovereignty arising from the
deposit and dispersion of herbicides in Ecuador, Colombia has further violated
Ecuador’s territorial sovereignty when its herbicide spraying activities have
involved instances of direct overflight into the airspace of Ecuador. Ecuador has
never consented to or otherwise authorised any of these instances of overflight.
B. S OVEREIGNTY AND E NVIRONMENTAL H ARM
7.18 Ecuador does not dispute that, in the exercise of its territorial sovereignty,
Colombia is entitled to regulate activities within its own jurisdiction and to take
certain actions aimed at halting the production of illegal drugs. However,
Colombia is bound to exercise such rights in accordance with its obligations
under international law and in such a manner as to respect the rights of
595Brownlie, op.cit., p. 115.
596
Military and Paramilitary Activities, I.C.J. Reports 1986, para. 251. See also ibid., para. 212:
“The basic legal concept of State sovereignty in customary international law, eintersed in,
alia, Article 2, paragraph 1, of the United Nations Charter, extends to the internal waters and
territorial sea of every State and to the air space above its territory.”
266 597
Ecuador . The Court has referred to “every State’s obligation not to allow
598
knowingly its territory to be used for acts contrary to international law” .
7.19 More specific rules of international law have developed regarding harm
caused or threatened to the territory and environment of other States as a result of
polluting or other environmentally-damaging activities. These are set out in more
detail in Chapter VIII. In summary, as the authors of Oppenheim’s International
Law have observed:
“A state, in spite of its territorial authority, may not alter the
natural conditions of its own territory to the disadvantage of the
natural conditions of the territory of a neighbouring state for
instance, to stop or to divert or pollute the flow of a river which
runs from its own into neighbouring territory. A state is bound to
prevent such use of its territory as, having regard to the
circumstances, is unduly injurious to the inhabitants of the
neighbouring state, e.g. as the result of working of factories
emitting deleterious fumes.
. . .
states are increasingly subject to constraints upon freedom of
action in their own territory to engage in or permit activities, not in
themselves unlawful, which pollute the environment, particularly
if damage beyond their frontiers may otherwise be caused to other
states or their nationals . . .”599
7.20 Principle 21 of the 1972 Stockholm Declaration on the Human
Environment accordingly provides that:
597For example, Lake Lanoux, p. 382 (“France is entitled to exercise her rights; she cannot ignore
Spanish interests. Spain is entitled to demand that her rights be respected and that her interests be
taken into consideration.”).
598
Corfu Channel, I.C.J. Reports 1949 , p. 22. See also the Trail Smelter Arbitration (United
States of America v. Canad a) 1 Int’l. Env. Law Reports (1941), pp. 231 & 310; See also infra,
Chap. VIII, para 8.12.
59Oppenheim’s International Law op. cit., pp. 391-392 (footnotes omitted).
267 “States have, in accordance with the Charter of the United Nations
and the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national
jurisdiction.” 600
7.21 In the Nuclear Tests case Australia invoked this principle in support of its
claim to link environmental harm with violation of a State’s sovereignty. In the
21 century, it can hardly be challenged that the deposit of significant pollution
and its dispersion in a State’s airspace without that State’s consent will violate a
State’s sovereignty over its territory, and impair the “right to determine what acts
601
shall take place within its territory” .
Section II. Conclusions
7.22 By aerially spraying toxic herbicides at locations near, at and over its
border with Ecuador, Colombia has violated the territorial sovereignty and
integrity of Ecuador, including the sovereign rights of Ecuador over its natural
and biological resources, and has violated its obligation to ensure that activities
within its jurisdiction or control do not cause damage to the environment of other
States.
7.23 The consequences of such violations, as well as the consequences of
Colombia’s violations relating to transboundary pollution, respect for
600
Declaration of the United Nations Conference on the Human Environment, U.N. Doc.
A/CONF/48/14/REV.1 (1972); see also infra, Chap. VIII, para. 8.11.
601Application instituting proceedings submitted by Australia (9 May 1973), para. 48, in Nuclear
Tests (Australia v. France), Pleadings, Oral Arguments, Documents, Vol. 1, p. 14.
268fundamental human rights and the rights of indigenous communities, are
addressed in Chapter X.
269 CHAPTER VIII.
TRANSBOUNDARY HARM Section I. Prevention of Transboundary Harm
A. ECUADOR ’SC LAIM WITH R ESPECT TO TRANSBOUNDARY H ARM
8.1 The obligation of all states to prevent transboundary harm resulting from
activities within their own territory or control is at the heart of the present case.
That obligation is grounded in general international law, but it is also imported
directly into these proceedings by the 1988 Narcotics Convention. Article 14(2) of
that Convention provides: “Each Party shall take appropriate measures to prevent
illicit cultivation of and to eradicate plants containing narcotic or psychotropic
substances, such as opium poppy, coca bush and cannabis plants, cultivated
illicitly in its territory. The measures adopshall respect fundamental human
rights and shall take due account of traditional licit uses, where there is historic
602
evidence of such use, as well as the protection of the environment.”
8.2 Ecuador’s case is that Colombia has undertaken aerial spraying intended
to eradicate plants containing narcotic substances in a manner which fails to
respect fundamental human rights and protect the environment, thereby violating
inter alia, Article 14(2) of the 1988 Narcotics Convention and customary
international law relating to transboundary pollution and significant harm, in
addition to the human rights obligations that form the subject of the following
Chapter.
8.3 The obligation to prevent transboundary harm to people, property and the
environment has been recognised by the International Law Commission (“ILC”)
and in judgments of international courts and arbitral tribunals. Notably, in its
602
Emphasis added.
273Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons this
Court affirmed that “the environment is not an abstraction but represents the
living space, the quality of life and the very health of human beings, including
generations unborn. The existence of the general obligation of States to ensure
that activities within their jurisdiction and control respect the environment of
other States or of areas beyond national control is now part of the corpus of
603
international law relating to the environment” .
8.4 The law on this subject is rooted in the well-known decision in the Trail
Smelter Arbitration which, like the present case, was concerned with air pollution.
In their award the arbitrators concluded that “no state has the right to use or permit
the use of its territory in such a manner as to cause injury by fumes in or to the
territory of another or the properties or persons therein, when the case is of serious
604
consequence and the injury is established by clear and convincing evidence” .
The arbitrators awarded monetary compensation for damage to property and crops.
605
Control measures to avert future transboundary pollution were prescribed.
8.5 This decision formed the basis for subsequent codification, first in the
1972 Stockholm Declaration on the Human Environment, then in the 1992 Rio
603Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (8
July 1996), pp. 241-242, para. 29. See also Arbitration regarding the Iron Rhine Railway between
the Kingdom of Belgium and the Kingdom of The Netherlands, PCA, Award of the Tribuna(l24 May
2005), paras. 222-223.
604The Trail Smelter Arbitration between the United States and Canada, 35 AJIL 684, 716 (1941).
This finding relied on the Alabama Claims Arbitration(1872) 1 Moore’s International Arbitrations
Awards, 485, and Eagleton,Responsibility of States in International L(1928), p. 80, for the general
proposition that “a state owes at all times a duty to protect other states against injurious acts by
individuals from within its jurisdiction”, and on the evidence of US and Swiss Federal case law
dealing with interstate/inter-cantonlaair and water pollution, which it held “may legitimately be taken
as a guide in this field of international law ... where no contrary rule Ib.id, pp. 713-716.
605Trail Smelter Arbitration, 35 AJIL684 (1941), Sec. 3, pp. 727-731.
274Declaration on Environment and Development, and finally in the International
Law Commission’s Articles on Prevention of Transboundary Harm, adopted by
the Commission in 2001 60. Principle 2 of the Rio Declaration requires States to
ensure that activities within their jurisdiction do not cause harm to the environment
of other States or of common spaces; Principle 17 requires them to assess
“proposed activities that are likely to have a significant adverse impact on the
environment”, and Principle 19 requires them to give prior notification and consult
in good faith before undertaking activities that may have significant adverse
transboundary effects.
8.6 The ILC’s articles on transboundary harm reflect the relevant provisions
607
of the Rio Declaration , but formulate them in greater detail. They specifically
cover harm to persons and property in addition to the environment of other States
(Article 2). Inter alia , all appropriate measures must be taken to prevent or
minimise the risk of transboundary harm or to minimise its effects (Article 3);
States must cooperate to this end (Article 4); no such activity may be undertaken
without prior impact assessment and authorization by the State in which it is to be
conducted (Articles 6 and 7); States likely to be affected must be notified and
consulted with a view to agreeing on measures to minimise or prevent the risk of
harm (Articles 8 and 9); relevant information on the risks must be given to the
public likely to be affected (Article 14); and measures must be taken to deal with
and notify other States of any emergency (Articles 16 and 17).
606
Report of the International Law Commission to the General Assembly on its Fifty-Third
Session, U.N. Doc. A/56/10 (2001) (hereinafter “ILC Report (2001)”), p. 366.
607U.N. Conference on Environment and Development, Rio Declaration on Environment and
Development (14 June 1992), Principles 2, 10, 11, 15, 17, 18, and 19.
2758.7 In furtherance of the objective of sustainable development, Principle 15 of
the Rio Declaration stresses that the precautionary approach “shall be widely
applied by States according to their capabilities”. This applies to transboundary
and national environmental risks, as well as global environmental risks 608. A
leading authority has summarised the precautionary principle or approach in the
following way: “It requires that once environmental damage is threatened, action
should be taken to control or abate possible environmental interference even
though there may still be scientific uncertainty as to the effects of the
609
activities” . The importance of the precautionary principle is that it redefines
existing rules of international law on the control of environmental risks and
conservation of natural resources, and brings them into play at an earlier stage
than before. No longer is it necessary to prove (as in the Trail Smelter case) that
serious harm has occurred or is highly likely before requiring that appropriate
precautionary and preventive measures be taken. Evidence that serious or
significant harm is possible will be enough to trigger an obligation for States to
610
act .
8.8 The need for a more precautionary approach to international risk
management now underpins an increasing number of multilateral environmental
agreements 611, and it has been recognised by international courts in several
608
See note 432 below.
609
David Freestone, “The Road from Rio: International Environmental Law After the Earth
Summit”, 6 J. of Env. Law193 (1994), p. 211.
610See, Pfizer Animal Health v. Council of the EU, (2002) ECR II-3305, paras. 135-173.
6111991 European Energy Charter, Art. 19; 1991 Bamako Convention on the Ban of the Import into
Africa and the Control of Transboundary Movement and Management of Hazardous Wastes
Within Africa, Art. 4(3)(f); 1992 Convention for the Protection of the Marine Environment of the
North-East Atlantic, Art. 2(2)(a); 1992 Helsinki Convention on the Protection of Baltic Sea Area,
Art. 3(2); 1992 UNECE Convention for the Protection of Transboundary Watercourses and Lakes,
Art. 2(5); 1992 Maastricht Treaty on European Union, Art. 174; 1992 Convention on Climate Change,
Art. 3; 1992 Convention on Biological Diversity, Preamble; 1994 UNECE Sulphur Protocol; 1994
276 612
cases . The precautionary principle has become one of the central concepts for
organising, influencing and interpreting contemporary international
613
environmental law and policy .
8.9 In this Chapter, Ecuador will show that Colombia has inter alia violated
its obligations in international law with respect to transboundary harm by:
(a) Causing or failing to prevent aerial spraying of herbicides resulting in
significant harm to persons, property, natural resources and the
environment in Ecuador;
(b) Failing to take precautionary measures to prevent and control
harmful effects of such herbicides on the health, livelihood, private
and family life, and property of affected persons in the territory of
Ecuador; and
(c) Failing to take precautionary measures to prevent and control
harmful effects of such herbicides on the environment and natural
resources, including biodiversity and ecosystems, in the territory of
Ecuador.
Danube Convention, Art. 2(4); 1995 FAO International Code of Conduct for Responsible Fisheries,
General Principles and Art. 6(5); 1995 UN Fish Stocks Agreement, Arts. 5 and 6; 1995 Revised
Convention for the Protection of the Mediterranean Sea Against Pollution, Art. 4(3)(a); 1996
Protocol to the London Dumping Convention, Art. 3; 1996 Protocol for the Protection of the
Mediterranean Sea against Pollution from Land-based Sources and Activities, Preamble; 1998
UNECE Protocol on Heavy Metals Protocol; 1998 UNECE Protocol on Persistent Organic Pollutants;
1999 Rhine Convention, Art. 4; 2000 Cartagena Protocol on Bio-safety, Arts. 1, 10(6) and 11(8);
2001 Stockholm Convention on Persistent Organic Pollutants, Art. 1; 2001 Convention on the
Control of Harmful Anti-fouling Systems on Ships.
612Southern Bluefin Tuna Cases, Provisional Measures JudgmentI,TLOS Nos. 3-4 (1999) paras. 77-
79; EC Measures Concerning Meat and Meat Products, Judgment, WTO Appellate Body,
WT/DS26/AB/R (1998), paras. 120-125; Waddenzee Case(2004) I ECR 7405; Pfizer Animal
Health v. Council of the EU (2002) ECR II-3305, paras. 135-173.
613See Nicolas de Sadeleer, Environmental Principles (2002), especially Chap. 4.
277 B. C OLOMBIA HAS A D UTY TO PREVENT S IGNIFICANT HARM TO PERSONS ,
PROPERTY , NATURAL RESOURCES AND THE E NVIRONMENT IN E CUADOR
8.10 As already shown in Chapter VI of this Memorial, the toxic herbicide
mixture used by Colombia in its aerial spraying operations has caused
transboundary pollution and significant harm in the territory of Ecuador. Had
Colombia taken appropriate measures, this pollution and its harmful consequences
could have been avoided.
8.11 States are required by international law to regulate and control activities
within their territory or subject to their jurisdiction or control that cause or risk
causing significant transboundary harm: see in particular Principle 2 of the 1992
Rio Declaration on Environment and Development 61, the Court’s Advisory
Opinion on the Legality of the Use or Threat of Use of Nuclear Weapons 615, and
Articles 1 to 3 of the ILC’s Articles on Prevention of Transboundary Harm 61.
614“States have, in accordance with the Charof the United Nations and the principles of
international law, the sovereign right to exploit their own resources pursuant to their own
environmental and developmental policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other states or of areas beyond the
limits of national jurisdiction.” See also Principle 21, 1972 Stockholm Declaration on the Human
Environment; 1992 Convention on Biological Diversity, Art. 3; and the preambles to the 1992
Framework Convention on Climate Change, 1994 Convention to Combat Desertification, 2001
Convention on Persistent Organic Pollutants, 2006 International Tropical Timber Agreement, and
2008 Non-Legally Binding Instrument on all Types of Forests, UNGA Res. 62/98.
615I.C.J. Reports 1996, p. 226, para. 29. See also Iron Rhine Arbitration, Award, PCA (24 May
2005), paras. 222-223.
616
Art. 1 provides: “The present articles apply to activities not prohibited by international law
which involve a risk of causing significant transboundary harm through their physical
consequences.” Art. 2 provides: “For the purposes of the present ara) Risk of causing
significant transboundary harm. includes risks taking the form of a high probability of causing
significant transboundary harm and a low probability of causing disastrous transboundary harm;
(b) Harm means harm caused to persons, property or the environmc) Transboundary harm
means harm caused in the territory of or in other places under the jurisdiction or control of a State
other than the State of origin, whether or not the States concerned share a commod)border; (
State of origin means the State in the territory or otherwise under the jurisdiction or control of
which the activities referred to in article 1 are planned or are e) States likely to be
278For this purpose “harm” includes harm to “persons, property or the environment”
(ILC, Article 2(b)) and harm to biological resources such as forests, flora and
617
fauna, fish stocks, and ecosystems .
8.12 The Court’s judgment in the Corfu Channel case supports a similar
conclusion. There Albania was held responsible for damage to British warships
in innocent passage through the Albanian territorial sea, caused by a failure to
warn them of the presence of mines. The Court indicated that it was “every
State’s obligation not to allow knowingly its territory to be used for acts contrary
618
to the rights of other States” . A fortiori that obligation is even more pertinent
when activities within the jurisdiction of one State cause harm within the territory
of another State.
8.13 Colombia’s aerial spraying operations plainly fall within the duty to
control activities taking place within its territory which cause or may cause
transboundary harm.
1. There Is Significant Harm
8.14 The harmful effects on Ecuador of Colombia’s herbicide spraying meet or
exceed the threshold of significant harm referred to by the ILC in its 2001 Articles
affected means the State or States in the territory of which there is the risk of significant
transboundary harm or which have jurisdiction or control over any other place where there is such
a risk; (f) States concerned means the State of origin and the State likely to be affected.” Art. 3
provides: “The State of origin shall take all appropriate measures to prevent significant
transboundary harm or at any event to minimize the risk thereof.”
6171992 Convention on Biological Diversity, Art. 3; UNEP, Report of the Working Group of
Experts on Liability and Compensation for Environmental Damage arising from Military Activities
th
(Nairobi, 1996); ILC, 11 Report on International Liability for Injurious Consequences, U.N. Doc.
A/CN.4/468 (1995); 1982 U.N. Convention on the Law of the Sea, Arts. 145, 194(5); 1997 U.N.
Convention on the Non-Navigational Uses of International Watercourses, Art. 20.
61Corfu Channel (United Kingdom v. Albania), Judgment I.C.J. Reports 1949, p. 22.
279 619
on the Prevention of Transboundary Harm . Harm is “significant” if it is “more
than ‘detectable’”, but it need not be “serious” or “substantial”; what is significant
620
depends on the circumstances of each case, and may vary over time . It must
lead to “a real detrimental effect on matters such as, for example, human health,
industry, property, environment or agriculture in other States. Such detrimental
effects must be susceptible of being measured by factual and objective
standards” 621.
8.15 Definitions of pollution confirm that “harm” includes hazards to human
health, injury to living resources, impairment of water, soil or air quality, and
reduction of amenities. The most pertinent definition of pollution is found in
Article 1(a) of the 1979 Convention on Long-range Transboundary Air Pollution:
“air pollution” means the introduction by man, directly or indirectly, of
substances or energy into the air resulting in deleterious effects of such a nature as
to endanger human health, harm living resources and ecosystems and material
property and impair or interfere with amenities and other legitimate uses of the
environment, and “air pollution” shall be construed accordingly”. Article 21(1) of
the 1997 UN Convention on the Law of the Non-navigational Uses of
International Watercourses is also relevant. It defines water pollution as “any
detrimental alteration in the composition or quality of the waters of an
international watercourse which results directly or indirectly from human
conduct”, but it is clear from Article 21(2) that this includes “significant harm” to
619See Arts. 1, 2 and 3, ILC Report (2001), op. cit., p. 366.
620
Ibid., p. 389, para 7.
621Ibid., p. 388, para 4.
280“human health or safety, to the use of the waters for any beneficial purpose or to
622
the living resources of the watercourse” .
8.16 Ecuador’s evidence in this case has shown quite clearly that the
deleterious effects of spraying herbicides on its territory and people are real and
623
measurable in the terms required by the ILC and the definition of pollution .
The deposit of Colombian herbicides constitutes pollution and has caused
significant harm within Ecuador. In particular, Chapter VI demonstrates that
aerial spraying of herbicides has caused ill health to individuals who reside in or
farm affected areas. The spraying has destroyed or damaged crops, rendered
farmland unproductive, polluted water supplies and made them unusable, and
caused sickness or death in domestic livestock. Border residents have been forced
to abandon their homes and villages, resulting in disruption or interference with
private and family life, loss of property, and loss of livelihood. Chapter IX will
show how these harmful impacts amount, inter alia, to a violation of the rights to
life, health, private and family life and property, as well as the rights of
indigenous peoples affected by transboundary pollution, but they are also more
than sufficient to engage Colombia’s obligations with respect to prevention of
pollution and significant transboundary harm.
8.17 Just as importantly, the long term effects on human and animal health,
624
biodiversity and the ecological balance remain untested and unknown .
622Art. 21(2) provides: “Watercourse States shall, individually and, where appropriate, jointly,
prevent, reduce and control the pollution of an international watercourse that may cause significant
harm to other watercourse States or to their environment, including harm to human health or
safety, to the use of the waters for any beneficial purpose or to the living resources of the
watercourse. Watercourse States shall take steps to harmonize their policies in this connection.”
623See supra Chap. VI. “The Damage Caused in Ecuador by Colombia’s Aerial Spraying of
Herbicides.”
624
See supra Chap V, paras. 5.33–5.34, 5.70–5.72.
281Justifiably, Ecuador pointed out in its Application to the Court that “Colombia’s
conduct amounts to a dangerous ecological and toxicological experiment on a vast
scale”. In Chapter II it was noted that Ecuador possesses the world’s highest
concentration of biological diversity 625. The northern border region is particularly
rich in biological resources: protected areas and nature reserves are home to an
abundance of animal and plant life that has yet to be fully documented by
science 626. The evidence reflects the extent of observed damage to forest
ecosystems, water resources, biological diversity and the natural environment, but
the full extent of the damage and the long-term risk to the environment can only
627
be identified by monitoring .
2. The Risk of Harm Was Foreseeable
8.18 Foreseeability of harm, in the sense of an objectively determined risk, is
sufficient to engage a State's duty to take measures to prevent transboundary
harm: see the ILC’s 2001 Articles on Prevention of Transboundary Harm. These
define risk to encompass both “a low probability of causing disastrous harm”, and
628
“a high probability of causing significant harm” . Whether there is such a risk
has to be determined objectively: “as denoting an appreciation of possible harm
resulting from an activity which a properly informed observer had or ought to
629
have had” .
625See supra Chap. II, paras. 2.4; 2.12.
626
See supra Chap. II, para. 2.15.
627See supra Chap. V, paras. 5.70–5.72; Chap. VI, paras.6.107, 6.109, 6.110, 6.114–6.125.
628Art. 2 and commentary inILC Report (2001), op. cit., pp. 386-387, paras. 2-3.
629
Ibid., p. 385 para. 15. See Corfu Channel, Judgment I.C.J. Reports 1949 , pp. 18-22; Bosnian
Genocide Case (Bosnia and Herzegovina v. Serbia and Montenegro ,)Judgment, I.C.J. Reports 20,7
para. 432.
2828.19 For this purpose it is not necessary to prove the existence or degree of risk
with absolute certainty. The precautionary principle as set out in Principle 15 of
the 1992 Rio Declaration on Environment and Development provides, inter alia,
that “Where there are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to
prevent environmental degradation.” The preamble to the 1992 Convention on
Biological Diversity applies the same requirement where there is a threat of
“significant reduction or loss of biological diversity”. The precautionary principle
also “implies the need for States to review their obligations of prevention in a
630
continuous manner to keep abreast with the advances in scientific knowledge” ,
and the ILC Commentary refers to the Court’s judgment in the Gab▯íkovo-
631
Nagymaros case in support of this conclusion .
8.20 The precautionary principle is already inherent in the requirements of
international law with respect to prevention, prior authorisation and
environmental impact assessment, “and could not be divorced therefrom” 632. As a
learned author has observed, “The point which stands out is that some
applications of the principle, which is based on the concept of foreseeable risk to
other states, are encompassed within existing concepts of state responsibility.” 633
An international tribunal must therefore take account of scientific uncertainty in
determining whether harmful consequences are foreseeable or not.
630
ILC Report (2001), op. cit., p. 415, para. 7.
631Ibid., p. 416, citing para. 140 of the judgment, in which the Court invited the Parties to “look
afresh at the effects on the environment of the operation of the Gab▯íkovo power plant,” in the
light of new requirements of environmental protection.
632Report of the International Law Commission to the General Assembly on its Fifty-Second
Session, U.N. GAOR A/55/10 (2000) (hereinafterI“LC Report(2000)”), para. 716.
633Ian Brownlie, Principles of Public International L(6 ed., Oxford, 2003), p. 276.
2838.21 The risk identified by Ecuador is neither hypothetical nor conjectural. It is
objectively based on scientific and expert evidence, including the risks identified
by regulatory authorities around the world and by the Colombian Government itself:
see Chapter V of this Memorial. Ecuadorian villages are located very close to the
border with Colombia, and agricultural crops are grown right up to the border 634.
Parts of the border area are mountainous, and the border itself follows the
sinuosity of the rivers and the terrain. Wind currents, tropical convection and the
difficulty of staying within Colombian airspace while spraying close to the border
make deposition of herbicide on Ecuador an obvious risk 63. Colombia’s own
officials recognised that there had been drift and off-target impacts within
Colombia 636. To any properly informed observer, repeatedly spraying toxic
herbicides from aircraft flying close to the Ecuadorian border would foreseeably
make transboundary harm highly probable, if not inevitable. But even if Ecuador
is wrong on this point, Colombia clearly knew of the risk to Ecuador, since it was
made aware of it in direct representations on numerous occasions by the
Government of Ecuador 63, in reports by UN Special Rapporteurs 638, and by
Colombian agencies 639. It cannot plead ignorance.
8.22 Nor can Colombia reasonably say that it was unaware of the harmful
qualities of the herbicide compound used in the spraying. Although the exact
634See, e.g., supra, Chap. VI, paras. 6.32–6.25, 6.29–6.32, 6.36–6.37, 6.61–6.75, Maps 5–7.
635See supra Chap. V, paras. 5.84–5.98; Chap. VI, paras. 6.24-6.25, 6.109; Declaration of Witness
4, 22 Dec. 2008. EM, Vol. IV, Annex 192; Declaration of Witness 5, 16 Jan. 2009. EM, Vol. IV,
Annex 193; Declaration of Witness 13, 15 Jan. 2009. EM, Vol. IV, Annex 201.
636
See supra Chap. V, paras. 5.82, 5.98, 5.102, 5.108.
637See supra Chap. III, paras. 3.6-3.22.
638See supra Chap. II, para. 2.50; Chap. III, paras. 3.61, 3.70; Chap. V, paras. 5.12–5.13, 5.30,
5.48, 5.56, Chap. VI, paras. 6.8, 6.107-6.108.
639
See supra Chap. V, paras 5.82, 5.98, 5.102–5.108.
284composition of the spray remains uncertain (though not of course to Colombia),
the toxic qualities of its principal ingredient, glyphosate, and of the surfactants
640
with which it appears to have been mixed, are well documented . There is
abundant evidence of their potentially harmful effects on human health, crops,
water supplies, animals or plants. Even if it is less clear what the long-term risks
of large-scale and repeated aerial spraying of these herbicides might be in a
641
tropical environment , there is still sufficient scientific basis for predicting the
likelihood of significant harmful effects, and “reason to believe” or “reasonable
642
grounds for concern” that significant damage will result.
8.23 It follows, therefore, that where there is evidence of a risk of serious or
significant harm, as there clearly is in this case, appropriate preventive and
precautionary measures are required, and there can be no scientific or legal basis
643
for Colombia’s failure to take such measures .
C. COLOMBIA FAILED TO TAKE ADEQUATE P RECAUTIONARY M EASURES
8.24 Notwithstanding the known and foreseeable risk of significant harm,
Colombia failed to regulate and control the spraying to the standards necessary to
give effect to its obligation to prevent transboundary harm, or to mitigate the
harmful effects on Ecuador.
640See supra Chap. V, Sec. I, “The Toxic Chemicals in the Herbicidal Spray” & Sec. II, “The
Spray Mixture’s Effects on People, Plants, Animals and the Environment.”
641
See supra Chap. V, paras. 5.70–5.72 on the difficulty of extrapolating North American data for
use in Colombia.
642EC Measures Concerning Meat and Meat Products, paras. 120-125.
643See to the same effect 2001 POPS Convention, Art. 8(7)(a) dealing with listing of harmful
chemicals and 2000 Biosafety Protocol, Art. 11(8).
2858.25 The spraying operations were directed by the Government of Colombia
and carried out on its behalf. Adequate precautionary measures should have been
taken in order to prevent or minimize the risk of transboundary harm or to
minimize its effects: see Article 3 of the ILC’s 2001 Articles on Prevention of
644
Transboundary Harm and Article 14(1)(d) of the 1992 Convention on
645
Biological Diversity . What this formulation implies is an obligation to
undertake a risk assessment and act with due diligence in controlling the spraying
646
operation so as to avoid harm to Ecuador .
8.26 The ILC commentary has summarised the key requirements of due
diligence:
“The standard of due diligence against which the conduct of State
of origin should be examined is that which is generally considered
to be appropriate and proportional to the degree of risk of
transboundary harm in the particular instance. For example,
activities which may be considered ultra-hazardous require a much
higher standard of care in designing policies and a much higher
degree of vigour on the part of the State to enforce them. Issues
such as the size of the operation; its location, special climate
conditions, materials used in the activity, and whether the
conclusions drawn from the application of these factors in a
644
“The State of origin shall take all appropriate measures to prevent significant transboundary
harm or at any event to minimize the risk thereof.” See to the same effect Art. 2(1) of the 1991
Convention on Transboundary Environmental Impact Assessment: “The parties shall, either
individually or jointly, take all appropriate and effective measures to prevent, reduce and control
significant adverse transboundary environmental impact from proposed activities.”
645
Article 14(1)(d) provides: “1. Each Contracting Party, as far as possible and as appropriate,
shall: (d) In the case of imminent or grave danger or damage, originating under its jurisdiction or
control, to biological diversity within the area under jurisdiction of other States or in areas beyond
the limits of national jurisdiction, notify immediately the potentially affected States of such danger
or damage, as well as initiate action to prevent or minimize such danger or damage .” (emphasis
added). Article 3 of the Convention recognises the responsibility of states “to ensure that activities
within their jurisdiction or control do not cause damage to the environment of other states.”
646ILC Report (2000), op. cit., para. 718: “the special rapporteur was of the opinion that ‘all
appropriate measures’ and ‘due diligence’ were synonymous.”
286 specific case are reasonable, are among the factors to be
considered in determining the due diligence requirement in each
instance. What would be considered a reasonable standard of care
or due diligence may change with time; what might be considered
an appropriate and reasonable procedure, standard or rule at one
point in time may not be considered as such at some point in the
future. Hence, due diligence in ensuring safety requires a State to
keep abreast of technological changes and scientific
developments.” 647
8.27 Applying the ILC’s commentary to the present case, it is clear that a very
high standard of care is called for when inherently hazardous activities such as
aerial spraying of toxic herbicides are undertaken. The only appropriate standard
of care in the circumstances of the present case is one that eliminates all risk of
transboundary pollution caused by overflight or drift. The Court has itself
recognised the need for a high standard of care in such situations:
“The Court is mindful that, in the field of environmental
protection, vigilance and prevention are required on account of the
often irreversible character of damage to the environment and of
the limitations inh648nt in the very mechanism of reparation of this
type of damage” .
8.28 As Chapter V of this Memorial shows, the likely chemical ingredients in
the toxic herbicide mixture used by Colombia is inherently dangerous to humans,
plants, animals, natural resources and the environment. Glyphosate kills plants
indiscriminately 649. Various components of the spray cause ill-health in humans
and animals 650. It pollutes watercourses and kills fish and other aquatic
647ILC Report (2001), op. cit., p. 394, para. 11.
648Case concerning the Gab▯íkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Reports 1997,
p. 78, para. 140.
649
See supra Chap. V, para. 5.7.
650See supra Chap. V, paras. 5.35–5.50, 5.56–5.57.
287organisms 651. It has harmful effects on biological diversity and ecosystems 652.
Colombia has used a product that is among the most toxic available, and is many
times stronger than in normal agricultural applications; the spray mixture is
heavily laden with surfactants to maximize its lethal effects, and the application
rate far exceeds the average for agricultural use 653.
8.29 If it wishes to use such highly toxic compounds in its spraying programme
Colombia has a duty to make certain that transboundary pollution cannot and does
not occur. In the present case, overflight and transboundary drift into Ecuador are
demonstrable risks and have happened on innumerable occasions detailed in
Chapter VI. Product labelling for the principle ingredient in the chemical spray
says clearly “AVOID DRIFT” and indicates that minute quantities of this product
can cause severe damage or destruction to the crops, plants or other areas on
which treatment was not intended, and may result in injury to persons or
animals 654. Direct spraying on humans is prohibited by product labelling 655.
Manufacturer’s warnings emphatically caution against any spraying that may
result in drift, and substantially limit the conditions under which aerial spraying
may be conducted: “The product should only be applied when the potential for
drift to adjacent sensitive areas (e.g., residential areas, bodies of water, known
habitat for threatened or endangered species, non-target crops) is minimal (e.g.,
651See supra Chap. V, paras. 5.62–5.67.
652
Comptroller General of the Republic of Colombia, Plan Colombia: Fourth Evaluation Report
(hereinafter “Comptroller General Fourth Evaluation Report ”) (July 2003), p. 37. EM, Vol. II,
Annex 98; see also supra, Chap. V, paras. 5.60, 5.63–5.72.
653See supra Chap. V, paras. 5.13–5.14, 5.17.
654See, e.g., United States Roundup Pro Label. EM, Vol. III, Annex 128; see also supra, Chap. V,
paras. 5.9, 5.76.
655See, e.g., Australia Roundup Label. EM, Vol. III, Annex 105; see also supra, Chap. V, para.
5.41.
288 656
when wind is blowing away from the sensitive areas).” In most user countries
these restrictions are contained in legally binding regulations, as they are in
657
Colombia .
8.30 Taking fully into account “the size of the operation; its location, special
658
climate conditions, [and] materials used in the activity” , it is also clear that
appropriate and effective measures “proportional to the degree of risk” could
reasonably and easily have been taken by the Government of Colombia to
eliminate the risk of transboundary harm to Ecuador. Inter alia, spraying should
have been banned in a buffer zone adjacent to the border and should have been
conducted without over-flying the territory of Ecuador. Buffer zones are required
by manufacturers’ labelling and were recommended by Colombia’s own
Environment Ministry as a means of protecting people and crops 659. A less
harmful mixture could have been used. In failing or refusing to place restrictions
of this kind on aerial spraying operations, Colombia failed to control and regulate
the spraying operation as required by international law and failed to display a
reasonable standard of care towards those likely to be affected. Such
precautionary measures were well within its power, required no additional
technology or expense, and would have been effective to limit aerial drift of
herbicide pollution onto the territory of Ecuador.
8.31 Colombia’s failure to take the necessary precautionary measures cannot be
justified by any countervailing benefit to itself or by the requirements of the 1988
656United States Roundup Pro Label , p. 4, Sec. 7.1. EM, Vol. III, Annex 128;see also supra ,
Chap. V, para. 5.80.
657See supra Chap. V, paras. 5.39–5.40.
658
ILC Report (2001), op. cit., p. 394, para. 11.
659See supra Chap. V, paras. 5.81–5.82.
289Narcotics Convention. Spraying of coca plantations has not resulted in an overall
reduction in coca production 660. It is neither the only means of crop eradication
available nor the most effective: both Colombia and Ecuador also use manual
eradication, for example 661. Implementing a no-spray zone along the border
would have had limited effect on coca production, but would have saved Ecuador
from significant harm. In those circumstances the harm to Ecuador greatly
outweighs any benefit to Colombia from aerial spraying in border areas. This
lack of proportionality violates the equitable balance of interests required by
Article 10 of the 2001 ILC Articles on Prevention of Transboundary Harm 662.
Not only are the means of preventing transboundary harm readily available within
the terms of Article 10(a) and (c), but even if they were not, it is equally clear
pursuant to Article 10(b) that the “overall advantages of a social, economic and
technical character for the State of origin in relation to the potential harm for the
State likely to be affected” do not justify the harm inflicted on Ecuador. The ILC
commentary 663 refers in this context to the Donauversinkung case where the
German court stated that: “The interests of the States in question must be weighed
in an equitable manner one against another. One must consider not only the
660See supra Chap. II, paras. 2.54-2.55.
661See supra Chap. II, para. 2.31.
662
Art. 10 provides in full: “In order to achieve an equitable balance of interests as referred to in
paragraph 2 of article 9, the States concerned shall take into account all relevant factors and
circumstances, including: ( a) The degree of risk of significant transboundary harm and of the
availability of means of preventing such harm, or minimizing the risk thereof or repairing the
harm; (b) The importance of the activity, taking into account its overall advantages of a social,
economic and technical character for the State of origin in relation to the potential harm for the
State likely to be affected; (c) The risk of significant harm to the environment and the availability
of means of preventing such harm, or minimizing the risk thereof or restoring the environment; (d)
The degree to which the State of origin and, as appropriate, the State likely to be affected are
prepared to contribute to the costs of prevention; e) The economic viability of the activity in
relation to the costs of prevention and to the possibility of carrying out the activity elsewhere or by
other means or replacing it with an alternative activity; ( f) The standards of prevention which the
State likely to be affected applies to the same or comparable activities and the standards applied in
comparable regional or international practice.”
663
ILC Report (2001), op. cit., p. 413, para. 4.
290absolute injury caused to the neighboring State, but also the relation of the
advantage gained by the one to the injury caused to the other.” 664
8.32 Nor does the 1988 Narcotics Convention compel States to disregard
potential harmful impacts on other States when eradicating drug crops. On the
contrary, it refers explicitly to the need to “respect fundamental human rights”
and to “take due account” of the protection of the environment: see Article 14(2)
quoted earlier.
8.33 Moreover, Colombia could and should have warned Ecuador when
spraying operations were due to take place, so that Ecuador could take appropriate
precautions to minimise the harm on its territory. Indeed, Ecuador requested that
665
Colombia provide such warnings, without success .
8.34 Colombia’s direct control over the spraying operations was such that it
knew in what locations spraying would take place and what the likely risk to
Ecuador would be. Official sources describe how sophisticated technology is
666
used to map the locations of spraying operations in advance . In the Corfu
664
Wurttemberg and Prussia v. Baden (Donauversinkung case) (1927) in Entscheidungen des
Reichsgerichts in Zivilsachen (Berlin, de Gruyter), Vol. 116, Appendix, pp. 18-45 (1927), in
Annual Digest of Public International Law Cases (1927-1928) (London, 1931), p. 131. See also
Kansas v. Colorado, 206 US 100 (1907);Washington v. Oregon, 297 US 517 (1936).
665
See Chap. III, paras. 3.3, 3.44.
666Note SARE-142, sent from the National Directorate of Narcotics of the Ministry of Interior and
Justice of Colombia to the President of the Technical-Scientific Commission of Ecuador (14 Apr.
2004) (describing the process for detecting the locations of coca crops, and carrying out aerial
spraying operations accordingly). EM, Vol. II, Annex 63; United States Department of State,
Bureau for International Narcotics and Law Enforcement Affairs, Report on Issues Related to the
Aerial Eradication of Illicit Coca in Colombia: Chemicals Used in the Aerial Eradication of Illicit
Coca in Colombia and Conditions of Application (Sep. 2002), p. 3–4 (describing the use of an
airborne camera system and global positioning systems (GPS) equipment for planning and
reconnaissance that includes the programming of flight lines). EM, Vol. III, Annex 144.
291Channel case the Court concluded that Albania knew of the existence of a
minefield and the risk to shipping because of the “close Albanian surveillance
over the Strait” 667. The same inference about Colombia’s knowledge of the risk
to Ecuador can be drawn in this case.
8.35 The Government of Colombia was fully aware that planes operating from
Colombian territory were carrying out spraying operations in a manner that would
inevitably result in harm or a risk of harm to Ecuador. In those circumstances,
due diligence requires Colombia to provide adequate and timely warning to
Ecuador, a State likely to be affected: see the Corfu Channel case 668, and
Principle 19 of the 1992 Rio Declaration on Environment and Development 669, as
codified in various treaties 670.
8.36 In alleging that Colombia has failed to exercise due diligence with respect
to herbicide spraying, Ecuador is not arguing that spraying must not take place at
all within Colombian territory. In the present case Ecuador’s argument is
precisely -- and simply -- that Colombia manifestly failed to take all the
appropriate precautionary measures within its power to prevent transboundary
drift from causing significant harm in Ecuador.
667Corfu Channel, Judgment I.C.J. Reports 1949, p. 22.
668
“The obligations incumbent upon the Albanian authorities consisted in notifying for the benefit
of shipping in general, the existence of a minefield in Albanian territorial waters and in warning
the approaching British warships of imminent dang er to which the mi nefield exposed them.”
Corfu Channel, Judgment I.C.J. Reports 1949, p. 22.
669
Principle 19 provides: “States shall provideir and timely notification andrelevant information
to potentially affected states on activities that may have a significant adverse transboundary
environmental effect and shall consult with those states at an early stage and in good faith.”
670
See 1992 Convention on Biological Diversity, Article 14(c) & (d); 1992 Convention on
Transboundary Effects of Industrial Accidents, especially Art. 4; 1979 Geneva Convention on Long-
Range Transboundary Air Pollution, Arts. 5 & 8; 1986 Convention on Early Notification of a
Nuclear Accident, especially Art. 2.
2928.37 For all these reasons, Colombia is in breach of its obligation in
international law to take all appropriate measures to prevent aerial spraying of
herbicides from resulting in significant and foreseeable harmful effects on (a) the
health, livelihood, private and family life, and property of affected persons in the
territory of Ecuador and (b) the environment and natural resources, including
biodiversity and ecosystems, in the territory of Ecuador. These effects have been
fully detailed in Chapter VI of this Memorial.
Section II. Cooperation in Managing the Transboundary Effects of Aerial
Spraying of Herbicides
A. ECUADOR S C LAIM WITH RESPECT TO C OOPERATION
8.38 Cooperation provides the essential basis for the management of
transboundary risks. The obligation of States to cooperate through notification,
consultation and negotiation permeates the ILC’s 2001 Articles on Prevention of
Transboundary Harm 671and the 1992 Rio Declaration on Environment and
Development 672. It is very clearly articulated in the Lake Lanoux Arbitration73,
and in various regional treaties, including the 1991 UNECE Convention on EIA
671ILC Report (2001), op. cit., p. 366.
672
See Principles 7, 9, 12, 13, 14, 18, 19, 27.
673Lac Lanoux Arbitration (Spain v. France), 24 ILR 101 (1957). See also Gab▯íkovo-Nagymaros,
I.C.J. Reports 1997, paras. 140-147.
293 674
in a Transboundary Context . It is the foundation for equitable utilisation,
675
management, and conservation of shared natural resources , including the law of
676
international watercourses .
8.39 The ILC Articles on Prevention of Transboundary Harm specifically
require States to cooperate in negotiating an equitable balance of interests. Article
9 provides:
1. The States concerned shall enter into consultations, at the request
of any of them, with a view to achieving acceptable solutions
regarding measures to be adopted in order to prevent significant
transboundary harm or at any event to minimize the risk thereof.
The States concerned shall agree, at the commencement of such
consultations, on a reasonable time-frame for the consultations.
2. The States concerned shall seek solutions based on an equitable
balance of interests in the light of article 10.
3. If the consultations referred to in paragraph 1 fail to produce an
agreed solution, the State of origin shall nevertheless take into
account the interests of the State likely to be affected in case it
decides to authorize the activity to be pursued, without prejudice to
the rights of any State likely to be affected.
8.40 In this section Ecuador will show that Colombia has not cooperated as
required by international law in managing the transboundary risks and effects of
its aerial spraying programme, specifically by:
674See especially Arts. 2-5, 8.
675
See UNEP, 1978 Principles of Conduct in the Field of the Environment for Guidance of States
in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More
States (hereinafter, “UNEP Environmental Law Guidelines and Principles”), available at
http://www.unep.org/Law/PDF/UNEPEnvironmental-Law-Guidelines-and-Princi… tsal(
visited 26 Mar. 2009).
676 See in particular 1997 U.N. Convention on the Non-Navigational Uses of International
Watercourses, especially Arts. 8, 20-23.
294 (a) Failing to assess the potential transboundary effects of aerial
spraying of herbicides on the territory, people and environment of
Ecuador;
(b) Failing to ensure that communities in Ecuador likely to be affected
by aerial spraying of herbicides have been informed and consulted;
and
(c) Failing to cooperate with Ecuador in the control of transboundary
risks arising from the aerial spraying of herbicides, inter alia by
refusing to share information on the chemicals in use and their likely
effects on public health and the environment.
B. C OLOMBIA F AILED TO A SSESS THE POTENTIAL T RANSBOUNDARY EFFECTS
OF A ERIAL SPRAYING
8.41 Without an environmental impact assessment (“EIA”) there can be no
meaningful notification, consultation and cooperation with neighbouring States,
nor can adequate steps be taken to protect communities likely to be affected 67.
The evidence set out in earlier chapters of this Memorial shows that Colombia (a)
did not properly assess in advance the potential impact of its aerial spraying
operations on the territory, people, natural resources and environment of
Ecuador 678, (b) did not give Ecuador information about the potential risk to
Ecuador posed by the spraying 67, and (c) did not inform or consult communities
in Ecuador likely to be affected by the spraying, nor did it give warnings when
spraying was imminent, despite assurances that such warning would be given 68.
67See infra paras. 8.43-8.54.
678
See supra Chap. III, paras. 3.28–3.44; Chap. V, paras. 5.25–5.26, 5.70–5.72.
679
See supra Chap. III, paras. 3.9–3.`0, 3.13, 3.16, 3.28–3.44.
68See supra Chap. III, paras. 3.2-3.3, 3.21, 3.25, 3.44-3.45.
2958.42 Colombia itself has recognised that an adequate environmental impact
assessment was not carried out in this case: see report of the Colombian
Comptroller General (2003): “Neither the Government of the United States or the
Government of Colombia has presented an adequate evaluation of the possible
impacts for human health and ecosystems caused by the spray mixtures that are
being sprayed under the conditions of direct exposure that occur in Colombia.” 681
As noted in Chapter II, Colombian Ministry of Environment Resolution 0670 (19
June 2003) sanctioned the National Narcotics Directorate (“DNE”) for refusing to
carry out environmental impact evaluations during the aerial spraying campaigns,
for designing environmental audits that did not evaluate the effectiveness of
environmental mitigation measures, and for failing to evaluate the potential
682
environmental damage caused by aerial fumigation .
8.43 International law provides that activities likely to cause significant
transboundary pollution or harm must be subject to EIA by the State in which
these activities are to be conducted: see, in particular, Article 7 of the 2001 ILC
Articles on Prevention of Transboundary Harm, which state: “Any decision in
respect of the authorization of an activity within the scope of the present articles
shall, in particular, be based on an assessment of the possible transboundary harm
caused by that activity, including any environmental impact assessment.” 683
8.44 The ILC Commentary to Article 7 notes that EIA requirements in various
forms are found in many international agreements, and that “The practice of
requiring an environmental impact assessment has become very prevalent in order
681See Comptroller General Fourth Evaluation Report, op. cit., p. 36. EM, Vol. II, Annex 98.
682
See supra Chap. II, para. 2.48.
683ILC Report(2001),op. cit.,p. 402, Art. 7.
296to assess whether a particular activity has the potential of causing significant
transboundary harm” 684. ILC Article 7 is based on Principle 17 of the 1992 Rio
Declaration on Environment and Development 685, and the ILC Commentary refers
extensively to the 1991 UNECE Convention on EIA in a Transboundary Context
686
for guidance .
8.45 At least five ICJ or ITLOS cases have involved alleged failures to
687
undertake a transboundary EIA . In some of these cases there are explicit treaty
articles, while in others customary law or “evolutionary interpretation” are relied
upon. These judgments provide evidence of State practice which points
consistently in the direction of recognising that where proposed activities are
likely to have harmful impacts on human health, property or the natural
environment, an EIA directed at transboundary impacts is a necessary preliminary
to consultation and cooperation with other potentially affected States. Gab▯íkovo-
Nagymaros remains the most significant case 688. Here it was alleged that an EIA
had not been carried out before construction of a hydroelectric project. The
684Ibid.,p. 403, para. 4.
685
Ibid., p. 402, para. 3. Principle 17 provides: “Environmental impact assessment, as a national
instrument, shall be undertaken for proposed activities that are likely to have a significant impact
on the environment and are subject to a decision of a competent national authority.” Both Ecuador
and Colombia were parties to the consensus by which the Rio Declaration was adopted. Colombia
recognizes environmental impact assessments as the “basic instrument for decision-making with
respect to construction projects and other activities that significantly affect the environment”.
Colombian Ministry of Environment, Law No. 99 (22 Dec. 1993), Art. 1.11. EM, Vol. II, Annex
12. This analysis must include “information about the location of the project and the biotic,
abiotic, and socioeconomic elements that may suffer damage from the project or activity … and an
evaluation of the impacts that may occur. Also required are plans for prevention, mitigation,
correction, and compensation of the impacts and an environmental management plan for the
project or activity.” Ibid. Art. 57. Some projects require an alternatives analysis. Ibid., Art. 56.
686ILC Report(2001),op. cit.,p. 402, para. 3.
687
Request for an Examination of the Situation, I.C.J. Reports 1995, 288; Gab▯íkovo-Nagymaros,
I.C.J. Reports 1997; MOX Plant Case, ITLOS No. 10 (2001); Land Reclamation Case, ITLOS No.
12 (2003); Pulp Mills Case (Argentina v. Uruguay), I.C.J. Reports 2006.
688
Gab▯íkovo-Nagymaros Case , op. cit.
297judgment stresses that new environmental norms and standards have to be taken
into account “not only when States contemplate new activities but also when
continuing activities begun in the past” 689. That proposition is equally apt when
applied to repeated aerial spraying of toxic chemicals over a seven-year period.
8.46 Even without this evidence of State practice, if States fail to conduct an
EIA before carrying out projects likely to result in significant transboundary
harm, they cannot subsequently argue that they acted with due diligence in
controlling or preventing harm that should and could have been foreseen and
prevented 690.
8.47 Principle 17 of the Rio Declaration calls for an EIA to be undertaken for
“proposed activities that are likely to have a significant adverse impact on the
691
environment”. In accordance with the precautionary principle , Principle 17 sets
a low threshold of proof when deciding whether an EIA is necessary. Most
692
treaties adopt similar formulations . Article 7 of the ILC’s Articles on
Prevention of Transboundary Harm refers merely to “possible transboundary
harm”. Article 206 of the 1982 UN Convention on the Law of the Sea requires
only “reasonable grounds for believing that planned activities ... may cause
689Ibid.,para. 140.
690See supra paras. 8.18-8.37.
691
Principle 15, 1992 Rio Declaration on Environment and Development: “In order to protect the
environment, the precautionary approach shall be widely applied by states according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.” See also paras. 8.24 et seq.
692
ILC, 2001 Articles on Transboundary Harm, Arts. 1, 2(a), 7; 1987 UNEP Goals and Principles
of Environmental Impact Assessment (hereinafter “1987 UNEP Goals and Principles of EIA”),
Principle 1; 1982 UNCLOS, Art. 206; 1991 Convention on Transboundary EIA, Art. 2(3); 1992
Convention on Biological Diversity, Art. 14.
298substantial pollution of or significant harmful changes to the marine
693
environment...”
8.48 The practice of the parties in MOX Plant and Pulp Mills similarly shows
that, where activities with a known risk of potentially significant pollution are
involved, the necessity of an EIA can be presumed, even if the likely risk is a
small one 69. In two cases the ITLOS found that the risk of harm to the marine
environment “could not be excluded” 695: in Land Reclamation it expressly
ordered the parties to assess the risks and effects of the works, while in Southern
Bluefin Tuna its order allowed catch quotas to be increased by agreement only
after further studies of the state of the stock. The outcome in these cases shows
that an EIA must be undertaken if there is some evidence of a risk of significant
harm to the human or natural environment – even if the risk is uncertain and the
potential harm not necessarily irreparable. They demonstrate that Colombia
should have carried out an EIA before commencing spraying operations likely to
affect Ecuador.
8.49 An EIA should at minimum produce information about the possible
696
impact on persons, property and the environment of other States . The 1991
Convention on Transboundary EIA and the United Nations Environmental
Programme’s (“UNEP”) EIA Goals and Principles specify in detail the type of
information which an EIA should contain. This includes a description of the
693Emphasis added.
694
MOX Plant Case, Provisional Measures Judgment, ITLOS No. 10 (2001); Pulp Mills Case
(Argentina v. Uruguay), Provisional Measures Judgment, I.C.J. Reports 2006.
695Southern Bluefin Tuna, Provisional Measures Judgment, ITLOS Nos. 3 & 4 (1999), para. 79;
Land Reclamation, Provisional Measures Judgment, ITLOS No. 12 (2003), para. 96.
696ILC Report(2001),op. cit.,p. 405, paras. 7 & 8.
299activity and its likely impact, mitigation measures and practical alternatives, and
697
any uncertainties in the available knowledge .
8.50 At no point did Colombia produce information of this kind, nor did it
inform Ecuador of the results of any assessments it undertook, nor did it respond
adequately to Ecuador’s repeated requests for information concerning
environmental impact studies 698. Such information should have been made
available to Ecuador: see Principle 19 of the 1992 Rio Declaration on
Environment and Development 699, Principle 12 of UNEP’s EIA Principles 700 and
Article 3(2) and (5) of the 1991 UNECE Convention on EIA in a Transboundary
701
Context . It follows that Ecuador was at no time properly or adequately
697
1987 UNEP Goals and Principles of EIA, op. cit., Principle 4; 1991 Convention on
Transboundary EIA, Art. 4(1) and Appendix II.
698
See supra Chap. III, Sec. I, “Ecuador’s Early Protests and Requests for Information: 2000-
2002,” and II, “The First Joint Scientific Commission and Colombia’s Continued Failure to
Provide Info: 2003-2004.”
699
Principle 19 provides: “States shall provide prior and timely notification and relevant
information to potentially affected States on activities that may have significant adverse
transboundary environmental effect and shall consult with those States at an early stage and in
good faith.”
700
Principle 12 provides: “When information provided as part of an EIA indicates that the
environment within another State is likely to be significantly affected by a proposed activity, the
State in which the activity is being planned should, to the extent possible: (a) Notify the
potentially affected state of the proposed activity; (b) Transmit to the potentially affected State any
relevant information from the EIA, the transmission of which is not prohibited by national laws or
regulations; (c) When it is agreed between the States concerned, enter into timely consultations.”
701Article 3(2) provides: “This notification shall contain, inter alia: (a) Information on the
proposed activity, including any available information on its possible transboundary impact; (b)
The nature of the possible decision; and (c) An indication of a reasonable time within which a
response under paragraph 3 of this Article is re quired, taking into account the nature of the
proposed activity; and may include the information set out in paragraph 5 of this Article.” Article
3(5) provides: “Upon receipt of a response from the affected Party indicating its desire to
participate in the environmental impact assessment procedure, the Party of origin shall, if it has
not already done so, provide to the affected Party: (a) Relevant information regarding the
environmental impact assessment procedure, including an indication of the time schedule for
transmittal of comments; and (b) Relevant information on the proposed activity and its possible
significant adverse transboundary impact.”
300informed about the risk posed by the spraying of toxic herbicides in border areas
and over Ecuadorian territory.
8.51 Information on the herbicide spraying programme should also have been
made available to Ecuador in accordance with Article 14 of the 1992 Convention
on Biological Diversity. Article 14(1)(a) requires parties to carry out an
environmental impact assessment of projects “that are likely to have significant
adverse effects on biological diversity….” Given the evidence of risk it poses to
biodiversity, aerial spraying of toxic herbicides on the scale undertaken by
Colombia clearly constitutes such a project 702. Notification of the significant risk
of harm to biodiversity posed by herbicide spraying in border areas adjacent to
703
Ecuador also falls within the terms of Articles 14(1)(c) and (d) . Interpreted in
accordance with the precautionary principle, and in the circumstances of the
present dispute, compliance with all of these requirements was both “possible and
appropriate”, within the terms of the chapeau to Article 14.
8.52 Colombia has recognized such obligations by incorporating them into its
Environmental Code, which provides for “prior and reciprocal communication”
with bordering States regarding actions taken in one State that may harm the
environmental rights or interests of another State. Such communication must be
made with sufficient advance notice so that the governments involved can address
702See supra Chap. V, paras. 5.59–6.72.
703Article 14(1)(c) provides for the parties to “Promote, on the basis of reciprocity, notification,
exchange of information and consultation on activities under their jurisdiction or control which are
likely to significantly affect adversely the biological diversity of other States or areas beyond the
limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral
arrangements, as appropriate.” Emphasis added. Article 14(1)(d) requires that contracting parties
shall “In the case of imminent or grave danger or damage, originating under its jurisdiction or
control, to biological diversity within the area under jurisdiction of other States or in areas beyond
the limits of national jurisdiction, notify immediately the potentially affected States of such danger
or damage …” Emphasis added.
301the situation 704. The Code also calls for “reciprocal and permanent” exchange of
information to facilitate the management of shared resources 705. Shared resources
include: rivers and other water bodies that make up Colombia’s frontier, forests,
706
species, and the atmosphere .
8.53 In the present case the harmful consequences of spraying the toxic
herbicide mixture used by Colombia on people, crops, animals, biodiversity and
watercourses were predictable, and stringent warnings about the risks of improper
707
application were widely disseminated in the manufacturers’ labelling . No
government could prudently or responsibly undertake widespread aerial spraying
of such a compound in border areas without considering the possible impact on
neighbouring States or giving them adequate information about its spraying
programme.
704Republic of Colombia, Decree No. 2811, National Code of Renewable Natural Resources and
Environmental Protection (18 Dec. 1974) , Art 10(b). EM, Vol. II, Annex 10. (“PART II: ON
ENVIRONMENTAL ISSUES OF INTERNATIONAL SCOPE OR INFLUENCE. Article 10: To
prevent or solve environmental problems and to regulate the use of renewable natural resources
shared with bordering countries, and without prejudice to the treaties currently in force, the
government shall seek to complement the existing stipulations or to negotiate others which deal
with: … (b) The reciprocation and prior communication of alterations or environmental
imbalances which can arise from works or projected works of the governments or inhabitants of
the respective countries, far enough in advance that said governments can take the pertinent
actions when they believe their environmental rights and interests could suffer impairment.”).
705Ibid., Art. 10(a) (“The reciprocation and permanent exchange of necessary information for the
planning of development and the optimal use of said resources and elements.”).
706Ibid., Art. 11 (“Natural resources subject to the provisions referred to in the preceding article
are, among others, the following: (a) The hydrographic basins of rivers which serve as borders or
which cross the borders of Colombia, including surface and subterranean water and other natural
connecting flows; (b) The forests on both sides of a border; (c) The fauna species in which
Colombia and neighboring countries have an interest; (d) National ocean waters and the elements
they contain; (e) The atmosphere, in as much as already verified acts or projected acts in a country
can produce harmful effects to the neighbor, or harmful climate changes; (f) The geothermic
deposits which extend to both sides of a border.”).
707
See supra Chap. V. “The Dangers Presented by Colombia’s Aerial Spraying of Herbicides.”
3028.54 In these circumstances, whatever the threshold standard for requiring an
EIA may be, Colombia cannot plausibly maintain that significant harm to Ecuador
was not likely. It should have carried out an EIA first, and communicated the
results to Ecuador, in accordance with the requirements of international law set
out above. In failing to do so it has violated its duty to assess transboundary risks,
has failed to act with due diligence, and has failed to cooperate with Ecuador as
required by international law.
C. COLOMBIA FAILED TO ENSURE THAT COMMUNITIES IN E CUADOR LIKELY TO
BE A FFECTED BY AERIAL SPRAYING W ERE NFORMED AND CONSULTED
8.55 In addition to its failure to carry out an EIA or inform Ecuador of the
results, Colombia also neglected to ensure that persons in Ecuador likely to be
affected by the aerial spraying were informed and consulted before spraying took
place.
8.56 Steps should have been taken to do so before spraying commenced: see
UNEP’s EIA Goals and Principles, Principle 5 (“appropriate opportunity to
comment on the EIA”) and ILC, 2001 Articles on Prevention of Transboundary
Harm, Article 13, which provides that “States concerned shall, by such means as
are appropriate, provide the public likely to be affected by an activity within the
scope of the present articles with relevant information relating to that activity, the
708
risk involved and the harm which might result and ascertain their viewThe
ILC Commentary notes that Article 13 applies whether the public likely to be
709
affected is their own or that of other St. It makes clear that “the purpose of
70ILC Report (2001), op. cit., p. 422. See also 1998 Aarhus Convention on Access to Information,
Public Participation in Decision-making and Access to Justice in Environmental Matters, Art. 6,
which creates a broader right of public access to information, including EIA procedures.
709
Ibid. See also 1991 Convention on EIA in a Transboundary Context, Arts. 2(6) and 3(8).
303providing information to the public is in order to allow its members to inform
themselves and then to ascertain their views. Without that second step, the
710
purpose of the article would be defeated” .
8.57 Moreover, compliance with international human rights law also
necessitates notification to the public and participation in an “informed process”
wherever environmental impacts may significantly affect life, health, private life
or property 711. The right to “meaningful consultation” in such circumstances was
upheld by the Inter-American Commission on Human Rights in the Maya
Indigenous Community of Toledo Case 712, by the African Commission on Human
713
and Peoples Rights in the Ogoniland Case , and by the UN Human Rights
714
Committee . In Öneryildiz v. Turkey , the European Court of Human Rights
placed “particular emphasis” on the public’s right to information about dangerous
715
activities which posed a threat to life .
710Ibid., p. 422, para. 1.
711Taskin v.Turkey, 42 EHRR 50 (2006), paras. 118-119.
712Maya Indigenous Communities of the Toledo District v. Belize , Judgment, Inter-American
Commission on Human Rights, Report Nº 40/04, Case 12.053 (12 Oct. 2004 ), paras. 154-155,
available at http://www1.umn.edu/humanrts/cases/40-04.html (last visited 26 Mar. 2009). The
Commission relies inter alia on the right to life and the right to private life, in addition to finding
consultation a “fundamental component of the State’s obligations in giving effect to the communal
property right of the Maya people in the lands that they have traditionally used and occupied.”
713Social and Economic Rights Action Center and the Center for Economic and Social Rights v.
Nigeria, ACHPR Comm. 155/96 (2002).
714Ilmari Lansman et al. v. Finland, ICCPR Comm. No. 511/1992 (1996), para. 9.5, which
stresses the need “to ensure the effective participation of members of minority communities in
decisions which affect them”. See also Apirana Mahuika et al. v. New Zealand, ICCPR Comm.
No. 547/1993 (2000), para. 9.8. See also ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples.
715
Öneryildiz v. Turkey, (2004) ECHR 657, para. 90.
3048.58 Where governments engage in or permit dangerous activities with known
consequences for health, such as aerial spraying of toxic herbicides, there is a
duty to establish an “effective and accessible” procedure for allowing those who
may be affected to obtain relevant information 716. That plainly did not happen in
the present case, where despite repeated attempts to extract information from
Colombia it still refuses to disclose precisely what chemical compound it uses in
the spraying.
8.59 In appropriate cases -- of which this is undoubtedly one -- there is also a
duty to inform the public likely to be affected, not simply a right of access to
information. In Guerra v. Italy, the failure to provide “essential information”
about the severity and nature of toxic emissions from a chemical plant was held to
constitute a breach of the right to private life 717. The judgment noted that the
applicants were “particularly exposed to danger” in the event of an accident at the
factory, and there had been a violation of Italian legislation requiring that
information concerning hazardous activities be made public. In the present case,
also involving exposure to toxic chemicals, inhabitants of Ecuadorian border
areas affected by aerial spraying of herbicides are likewise “particularly exposed
to danger”. They should have been informed accordingly by Colombia.
8.60 The right to information and public participation in EIA and authorisation
processes outlined in the ILC articles and in the case law referred to above also
draws inspiration both from Principle 10 of the 1992 Rio Declaration on
716McGinley and Egan v. United Kingdom, (1998) III ECHR, paras. 97, 101; LCB v. UK (1999)
27 EHRR212.
717
Guerra v. Italy, (1998) 26 EHRR357, para. 60.
305Environment and Development 718, and from the 1998 Aarhus Convention on
Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters which gives effect to Principle 10 719. As Kofi
Annan, when he was Secretary-General of the UN, observed: “Although regional
in scope, the significance of the Aarhus Convention is global. [I]t is the most
ambitious venture in the area of ‘environmental democracy’ so far undertaken
under the auspices of the United Nations.” 720 In his view the Convention has the
“potential to serve as a global framework for strengthening citizens’
721
environmental rights” .
8.61 Of particular relevance is Article 5(1)(c) of the 1998 Aarhus Convention,
which provides: “In the event of any imminent threat to human health or the
environment, whether caused by human activities or due to natural causes, all
information which could enable the public to take measures to prevent or mitigate
harm arising from the threat and is held by a public authority is disseminated
immediately and without delay to members of the public who may be affected.”
This provision succinctly codifies the human rights standards relied upon in the
cases cited in paragraphs 8.57 to 8.59 above.
718Principle 10 provides: “Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level. At the national level, each individual shall have
appropriate access to information concerning the environment that is held by public authorities,
including information on hazardous materials and activities in their communities, and the
opportunity to participate in decision-making processes. States shall facilitate and encourage
public awareness and participation by making information widely available. Effective access to
judicial and administrative proceedings, including redress and remedy, shall be provided.”
719 See in particular Arts. 4-7, and commentary in UNECE, The Aarhus Convention-An
Implementation Guide (New York, 2000), available at http://www.unece.org/env/pp/acig.pdf (last
visited 26 Mar. 2009).
720Kofi Annan, “Foreword”, UNECE, The Aarhus Convention-An Implementation Guide (New
York, 2000), available at http://www.unece.org/env/pp/acig.pdf(last visited 26 Mar. 2009).
721Ibid.
3068.62 Taken together, these precedents show that Colombia failed in its duty to
inform and consult those likely to be affected by its aerial spraying activities,
violating both the requirements of customary international law with respect to
environmental impact assessment and the rights of those Ecuadorians whose
health, private life and property have been harmed or put at risk.
D. COLOMBIA FAILED TO C OOPERATE IN THE CONTROL OF TRANSBOUNDARY
R ISKSA RISING FROM A ERIALS PRAYING
8.63 Much of the damage inflicted on Ecuador by aerial spraying could have
been avoided or minimised had Colombia cooperated with Ecuador at the outset,
particularly by notifying it of the intended operation, sharing information on the
chemicals in use and their likely effects on public health and the environment, and
consulting on ways to reduce or eliminate the risk to Ecuadorian territory and its
inhabitants. In practice, Colombia failed to cooperate in any of these ways. It has
already been shown in the previous Section that Colombia did not provide Ecuador
with prior and timely notification concerning the spray mixture or the locations to be
sprayed. It is equally the case that Colombia failed to consult with Ecuador as
722
required by international law at an early stage, or in good faith, or at all.
8.64 The fundamental rule that States must cooperate to minimise and reduce
the risk of transboundary harm emanating from activities located within their
territory, jurisdiction or control is set out in Principle 19 of the 1992 Rio
Declaration on Environment and Development: “States shall provide prior and
timely notification and relevant information to potentially affected states on
activities that may have a significant adverse transboundary environmental effect
and shall consult with those states at an early stage and in good faith.”
722
See supra Chap. III. “The Diplomatic History of the Dispute.”
3078.65 Principle 19 codifies an established rule of customary international law
relating to transboundary risks. It draws upon case law, State practice, and
multilateral treaties. The Lake Lanoux Arbitration 723 shows how the requirement
to cooperate in managing transboundary risk has been applied to international
watercourses. The tribunal held that France had obligations under both treaty and
customary law to consult and negotiate in good faith before diverting a
watercourse shared with Spain. It noted that conflicting interests must be
724
reconciled by negotiation and mutual concession . France had to give a
725
reasonable place to Spain’s interests in the solution finally adopted .
8.66 The same requirements are found in the codification of the law of
international watercourses drafted by the ILC and adopted in 1997 as the UN
Convention on the Law of Non-Navigational Uses of International Watercourses:
see in particular Articles 12 (Notification concerning planned measures with
possible adverse effects) 726 and 17 (Consultations and negotiations concerning
planned measures) 727.
723Lac Lanoux Arbitration (Spain v. France), 24 ILR 101 (1957).
724
Ibid., 119.
725
Ibid., 128-130, 140-141.
726Art. 12 provides: “Before a watercourse State implements or permits the implementation of
planned measures which may have a significant adverse effect upon other watercourse States, it
shall provide those States with timely notification thereof. Such notification shall be accompanied
by available technical data and information, including the results of any environmental impact
assessment, in order to enable the notified States to evaluate the possible effects of the planned
measures.”
727
Art. 17 provides: “1. If a communication is made under article 15 that implementation of the
planned measures would be inconsistent with the provisions of articles 5 or 7, the notifying State
and the State making the communication shall enter into consultations and, if necessary,
negotiations with a view to arriving at an equitable resolution of the situation. 2. The consultations
and negotiations shall be conducted on the basis that each State must in good faith pay reasonable
regard to the rights and legitimate interests of the other State. 3. During the course of the
consultations and negotiations, the notifying State shall, if so requested by the notified State at the
3088.67 The ILC’s 2001 Articles on Prevention of Transboundary Harm refer to
Rio Principle 19 and apply the same requirement of cooperation when another
State is at risk of transboundary harm. Several ILC articles are relevant. Article 4
728
requires cooperation in good faith . Article 8 requires that the contents of any
EIA indicating a risk of significant transboundary harm be communicated to the
729 730
affected States . Article 9 requires consultations on preventive measures .
Finally, Article 12 requires an ongoing exchange of information in a timely
manner not only at the planning stage but also while the activity is being carried
731
out . The obligation to cooperate is thus a continuing one.
8.68 The ILC Commentary notes that “The principle of cooperation between
States is essential in designing and implementing effective policies to prevent
time it makes the communication, refrain from implementing or permitting the implementation of
the planned measures for a period of six months unless otherwise agreed.”
728Art. 4 provides: “States concerned shall cooperate in good faith and, as necessary, seek the
assistance of one or more competent international organizations in preventing significant
transboundary harm or at any event in minimizing the risk thereof.”
729Art. 8 provides: “1. If the assessment referred to in article 7 indicates a risk of causing
significant transboundary harm, the State of origin shall provide the State likely to be affected
with timely notification of the risk and the assessment and shall transmit to it the available
technical and all other relevant information on which the assessment is based. 2. The State of
origin shall not take any decision on authorization of the activity pending the receipt, within a
period not exceeding six months, of the response from the State likely to be affected.”
730
Art. 9 provides: “1. The States concerned shall enter into consultations, at the request of any of
them, with a view to achieving acceptable solutions regarding measures to be adopted in order to
prevent significant transboundary harm or at any event to minimize the risk thereof. The States
concerned shall agree, at the commencement of such consultations, on a reasonable time-frame for
the consultations. 2. The States concerned shall seek solutions based on an equitable balance of
interests in the light of article 10. 3. If the consultations referred to in paragraph 1 fail to produce
an agreed solution, the State of origin shall nevertheless take into account the interests of the State
likely to be affected in case it decides to authorize the activity to be pursued, without prejudice to
the rights of any State likely to be affected.”
731Art. 12 provides: “While the activity is being carried out, the States concerned shall exchange
in a timely manner all available information concerning that activity relevant to preventing
significant transboundary harm or at any event minimizing the risk thereof. Such an exchange of
information shall continue until such time as the States concerned consider it appropriate even
after the activity is terminated.”
309significant transboundary harm or at any event to minimize the risk thereof. The
requirement of cooperation of States extends to all phases of planning and of
implementation” 732. It explains that Article 8, together with Articles 9, 11, 12 and
13, provide for “a set of procedures essential to balancing the interests of all the
States concerned by giving them a reasonable opportunity to find a way to
undertake the activity with satisfactory and reasonable measures designed to
prevent or minimize transboundary harm” 733. In the Commission’s view, “[t]he
obligation to notify other States of the risk of significant harm to which they are
exposed is reflected in the Corfu Channel case, where the International Court of
Justice characterized the duty to warn as based on elementary considerations of
humanity” 734. Its commentary also draws upon Articles 3(1) and 5 of the 1991
Convention on Environmental Impact Assessment in a Transboundary Context 735.
The purpose of consultations, it explains, “is for the parties to find acceptable
solutions regarding measures to be adopted in order to prevent significant
transboundary harm, or at any event to minimize the risk thereof” 736. Case law,
multilateral and bilateral treaties, the 1988 Narcotics Convention, ILC
codifications, and the Rio Declaration, as well as elementary considerations of
humanity referred to in the Corfu Channel case, all point to the conclusion that
neighbouring states have a duty in international law to cooperate in order to
732ILC Report (2001), op. cit., p. 396, para. 1.
733Ibid., p. 406, para. 1.
734
Ibid., p. 406, para. 3.
735Art. 3(1) provides: “For a proposed activity listed in Appendix I that is likely to cause a
significant adverse transboundary impact, the Party of origin shall, for the purposes of ensuring
adequate and effective consultations under Article 5 notify any Party which it considers may be
an affected Party as early as possible and no later than when informing its own public about that
proposed activity.” Art. 5 provides, insofar as relevant: “The Party of origin shall, after completion
of the environmental impact assessment documentation, without undue delay enter into
consultations with the affected Party concerning, inter alia, the potential transboundary impact of
the proposed activity and measures to reduce or eliminate its impact.”
736
ILC Report (2001), op. cit., p. 411, para. 5.
310control and minimize the risk of transboundary harm. They must give each other
prior notice of the activity, provide adequate information about the substances
used, and the risks to health, property or the environment. They must consult and
negotiate in good faith in order to identify means of preventing or minimizing the
risk of transboundary harm. Moreover, even if quod non notification and
consultation in cases of transboundary risk are not independent customary rules,
non-compliance with them is strong evidence of a failure to act diligently in
protecting other States from harm under Rio Principle 2 . 737
8.69 It is clear from the evidence that when a herbicide with the toxicity of the
likely chemicals used by Colombia is sprayed from the air along or near a border,
it is likely to fall and has fallen on Ecuador and cause pollution damage and ill
health. The point has already been made earlier that this outcome was foreseeable
and that Colombia knew of the probable consequences. Colombia cannot
plausibly argue that in these circumstances it had no duty to notify, consult and
cooperate with Ecuador in managing the likely risk.
8.70 Chapter III shows clearly that in the course of Ecuador’s repeated attempts
to negotiate a solution Colombia did not cooperate in good faith. Despite
738
agreeing to do so, it failed to supply information when requested . Despite an
express undertaking to give advance notification when further spraying operations
in the vicinity of the border were planned it failed to do so 73. When Ecuador
protested, Colombia merely reiterated its intention to continue spraying up to and
737Phoebe N. Okowa, “Procedural Obligations in International Environmental Agreements”, 67
BYIL(1996), 332-334;See also supra,paras. 8.38 et seq.
738
See Chap. III, paras. 3.1-3.3, 3.9, 3.17, 3.21, 3.28-3.30.
739See Chap. III, paras. 3.3, 3.21, 3.25, 3.44-3.45.
311 740
along the border . Meetings between the foreign ministers of the two States did
not result in agreement to suspend or modify the spraying operations, and
741
spraying continued . Although Colombia did eventually agree to establish a
bilateral scientific commission to investigate the matter, when the commission
met Colombia took the firm position from the outset that the aerial spray did not
cross over into Ecuador, and could not be the cause of any harmful trans-
boundary effects 742. The Commission’s meetings were futile.
Section III. Cooperation and Respect for Fundamental Human Rights and
Protection of the Environment as Required by the 1988 Narcotics
Convention.
8.71 Cooperation between State Parties is also required when carrying out drug
eradication programmes in accordance with the 1988 Narcotics Convention. The
parties to this Convention recognise “that eradication of illicit traffic is a
collective responsibility of all States and that, to that end, co-ordinated action
within the framework of international cooperation is necessary” (Preamble).
Article 14(3)(b) provides that “The Parties shall also facilitate the exchange of
scientific and technical information and the conduct of research concerning
eradication.” Article 14(3)(c) provides that “Whenever they have common
frontiers, the Parties shall seek to cooperate in eradication programmes in their
respective areas along those frontiers.” Article 14(2) provides: “Each Party shall
take appropriate measures to prevent illicit cultivation of and to eradicate plants
containing narcotic or psychotropic substances, such as opium poppy, coca bush
and cannabis plants, cultivated illicitly in its territory. The measures adopted shall
740See Chap. III, paras. 3.14-3.15, 3.17, 3.26.
741
See Chap. III, paras. 3.28-3.44.
742See supra Chap. III, para. 3.73.
312respect fundamental human rights and shall take due account of traditional licit
uses, where there is historic evidence of such use, as well as the protection of the
environment.”
8.72 Colombia has failed to comply with these provisions when carrying out
aerial spraying of toxic herbicides adjacent to its common border with Ecuador.
As detailed in Chapter III, it has not facilitated the exchange of scientific and
technical information concerning the impact of the toxic herbicides it uses to
spray border areas. In particular, the composition of the herbicide compound
remains unknown to Ecuador, and Colombia has failed to communicate the
contents of the impact assessment studies it should have undertaken 743. Chapter
III shows clearly that Colombia has also not cooperated in respect of its
eradication programme along the common frontier.
8.73 Nor has Colombia respected “fundamental human rights” or “protection of
the environment” as required by Article 14(2). Interpreted “in accordance with
the ordinary meaning” and “in the light of its object and purpose” (as required by
Article 31(1) of the Vienna Convention on the Law of Treaties), it seems clear
that the phrase “respect for fundamental human rights … as well as protection of
the environment” used in Article 14(2) is intended to incorporate the relevant
requirements of international environmental law set out in this Chapter and, with
respect to human rights, in the following Chapter.
8.74 In this respect Article 14(2) may be compared to the 1977 Treaty between
Hungary and Czechoslovakia which formed the subject matter of the dispute in
743See supra Chap. III, paras. 3.7, 3.30-3.35, 3.39, 3.41-3.42.
313the Gab▯íkovo-Nagymaros case 744. It was stipulated in Article 19 of the 1977
Treaty that “The Contracting Parties shall, through the means specified in the
joint contractual plan, ensure compliance with the obligations for the protection of
nature arising in connection with the construction and operation of the System of
Locks.” The Court held that there was “a continuing -- and thus necessarily
evolving -- obligation on the parties to maintain the quality of the water of the
745
Danube and to protect nature” . Equally in the present case there is a continuing
and necessarily evolving duty to protect Ecuador from environmental harm in
accordance with the terms of Article 14(2).
8.75 For this purpose applicable treaties and relevant rules of international law
referred to in the previous Sections of this Chapter must also be taken into
account in accordance with Article 31(3)(c) of the Vienna Convention on the Law
of Treaties. The terms within which “evolutionary interpretation” is permissible
under Article 31(3)(c) have been elaborated in the Court’s jurisprudence. While
accepting “the primary necessity of interpreting an instrument in accordance with
the intentions of the parties at the time of its conclusion,” treaties are to be
“interpreted and applied within the framework of the entire legal system
746
prevailing at the time of the interpretation.” Thus, the Court’s approach in
cases such as the Namibia Advisory Opinion and Aegean Sea is based on the view
744Gab▯íkovo-Nagymaros, I.C.J. Reports 1997.
745
Ibid., para. 140.
74Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276, Advisory Opinion,I.C.J. Reports
1971, p. 16, 31; Aegean Sea Continental Shelf (Greece v. Turkey) , I.C.J. Reports 1978, 3, 32-23;
Gab▯íkovo-Nagymaros, I.C.J. Reports 1997., paras. 140-141; Oil Platforms (Islamic Rep. of Iran
v. United States of America), Judgment, I.C.J. Reports 2003 , paras. 40-41. See also Iron Rhine
Arbitration (Belgium v. Netherlands), PCA, 2005, paras. 49, 58, 81;OSPAR Arbitration, PCA
(2003) paras. 101-105. The Court’s approach, combining both an evolutionary and an
intertemporal element, reflects the ILC’s commentary to what became Art.31(3)(c). See ILC, “The
Law of Treaties,” commentary to draft Article 27, para. (16), in A.D. WattsThe International
Law Commission 1949-1998 (Oxford, 1999), Vol. II, p. 690.
314 747
that the concepts and terms in question were by definition evolutionary . These
cases were concerned with the interpretation of particular provisions or phrases,
such as “natural resources,” or “jurisdiction,” which necessarily import a
reference to current general international law. Ambulatory incorporation of the
existing law, whatever it may be, enables treaty provisions to change and develop
as the general law itself changes, without the need for constant amendment. As
the Court pointed out in the Oil Platforms case, such treaty provisions are not
intended to operate independently of general international law 748.
8.76 The WTO Appellate Body has given a similarly evolutionary
interpretation to certain terms in the 1947 GATT Agreement. In the Shrimp-
Turtle decision, for example, it referred inter alia to the 1992 Rio Declaration on
Environment and Development, the 1982 UNCLOS, the 1973 CITES Convention,
the 1979 Convention on Conservation of Migratory Species and the 1992
Convention on Biological Diversity in order to determine the present meaning of
749
“exhaustible natural resources” .
8.77 These precedents show how the Court should approach the interpretation
of Article 14(2) of the 1988 Narcotics Convention. The terms “fundamental
human rights” and “protection of the environment” cannot have been intended to
operate independently of general international law. Nor, in accordance with the
case law of the Court, would it be appropriate to interpret them as the law stood in
1988 rather than as the Court finds it today.
747See also Southwest Africa Case, I.C.J. Reports 1966 , p. 48; La Bretagne Arbitration (Canada
v. France), 82 ILR 591 (1986), paras. 37-51.
748
Oil Platforms Case (Islamic Rep. of Iran v. United States of America), Judgment, I.C.J. Reports
2003, paras. 40-41.
749Import Prohibition of Certain Shrimp and Shrimp Products , Judgment, WTO Appellate Body
WT/DS58/AB/R (1998), paras. 130-131.
3158.78 Moreover, given that eradication of drug-producing crops is regulated by
an international treaty, it would be illogical to interpret Article 14(2) as if it
required each party only to protect human rights and the environment within its
own territory but not in neighbouring countries. As the UN Human Rights
Committee observed in Delia Saldias de López v. Uruguay : “It would be
unconscionable to so interpret the responsibility under article 2 of the Covenant as
to permit a State party to perpetrate violations of the Covenant on the territory of
750
another State, which violations it could not perpetrate on its own territory.”
Ecuador does not object to Colombia exercising its right to eradicate drug-
producing crops within its own territory, so long as it does so in accordance with
the requirements of the 1988 Narcotics Convention. That entails proper respect
for human rights and environmental protection not only in Colombia but also in
Ecuador.
8.79 Colombia’s failure to protect the environment of Ecuador from the effects
of its aerial spraying activities, whether by not taking adequate precautionary and
preventive measures, or by not assessing the risk of harm, or by not cooperating in
the management of risk along their common frontier, thus represents a breach of
the 1988 Narcotics Convention. For the same reasons, Colombia is also in breach
of its obligation under Article 14(2) to respect fundamental human rights, as
further set out in Chapter IX.
Section IV. Conclusions
8.80 The toxic herbicide used by Colombia in its aerial spraying operations has
caused transboundary pollution and significant harm in the territory of Ecuador.
750ICCPR Comm. No. 52/1979 (19 81), para. 12.3, referring to Art. 2 of the U.N. Covenant on
Civil and Political Rights. Emphasis added. See also Chap. IX, para. 9.11.
316Ecuador’s evidence has shown that the deleterious effects of Colombia’s spraying
of toxic chemicals on its territory and people are real and measurable. To any
properly informed observer, repeatedly spraying toxic chemicals from aircraft
flying close to the Ecuadorian border would foreseeably make transboundary
harm highly probable, if not inevitable. Colombia’s aerial spraying operations are
plainly activities which cause or may cause transboundary harm, and which
Colombia therefore has a duty to control.
8.81 Notwithstanding the known and foreseeable risk of significant harm,
Colombia failed to regulate and control the spraying to the standards necessary to
give effect to its obligation to take precautionary measures to prevent
transboundary harm, or to mitigate the harmful effects on Ecuador. Had
Colombia taken appropriate measures this pollution and its harmful consequences
could have been avoided. Colombia has undertaken aerial spraying in a manner
that violates Article 14(2) of the 1988 Narcotics Convention and customary
international law relating to transboundary pollution and significant harm.
8.82 Colombia’s failure to take the necessary precautionary measures cannot be
justified by any countervailing benefit to itself or by the requirements of the 1988
Narcotics Convention. Colombia is in breach of its obligation in international law
to take all appropriate measures, to prevent aerial spraying of herbicides from
resulting in significant and foreseeable harmful effects on (a) the health,
livelihood, private and family life, and property of affected persons in the territory
of Ecuador and (b) the environment and natural resources, including biodiversity
and ecosystems, in the territory of Ecuador.
8.83 Colombia also failed in its duty to inform and consult those likely to be
affected by aerial spraying, violating both the requirements of customary
317international law with respect to environmental impact assessment and the rights
of Ecuadorians whose health, private life and property have been harmed or put at
risk. Colombia (a) did not properly assess in advance the potential impact of its
aerial spraying operations on the territory, people, natural resources and
environment of Ecuador, (b) did not give Ecuador information about the potential
risk to Ecuador posed by the spraying, and (c) did not inform or consult
communities in Ecuador likely to be affected by the spraying, nor did it give
warnings when spraying was imminent, despite assurances that such warnings
would be given. Ecuador was at no time properly or adequately informed about
the risk posed by the spraying of toxic herbicides in border areas and over
Ecuadorian territory.
8.84 Finally, Colombia did not cooperate as required by international law, nor
did it take measures to guarantee respect for fundamental human rights or
protection of the environment as required by Article 14(2) of the 1988 Narcotics
Convention.
318 CHAPTER IX.
THE VIOLATION OF INTERNATIONAL HUMAN RIGHTS LAW
AND THE RIGHTS OF INDIGENOUS PEOPLES9.1 The programme of aerial spraying of toxic herbicides undertaken by
Colombia along the border with Ecuador has violated the obligations it owes
to Ecuador in three distinct but interrelated areas of international law: the
protection of the environment (as set out in the previous chapter), the
protection of fundamental human rights, and the protection of indigenous
peoples.
9.2 The relationship between these three distinct areas of international
law lies at the heart of this case and is the subject of this chapter. Their
interrelationship arises from the fact that the toxic herbicides used by
Colombia in aerial spraying of border areas have significantly harmful
consequences for the health and well-being of the people, natural resources
and environment in the affected areas of Ecuador. This gives rise to
separate causes of action: in relation to the environment, to human rights
and to indigenous peoples.
9.3 Each is a distinct area, although their interrelationship has long been
recognised. The 1972 Stockholm Declaration on the Human Environment,
for example, recognises in Principle I that:
“Man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a
solemn responsibility to protect and improve the environment
for present and future generations.” 751
9.4 In 1990 the UN General Assembly declared that: “all individuals are
entitled to live in an environment adequate for their health and well-
751U.N. Doc. A/CONF.48/14/Rev.1 (16 June 1972).
322 752
being” . Two years later, the UN Conference on Environment and
Development adopted the Rio Declaration on Environment and
Development, Principle 1 of which affirmed that:
“Human beings are at the centre of concerns for sustainable
development. They are entitled to a healthy and productive
life in harmony with nature.” 753
9.5 Principle 14 of the Rio Declaration further called on States to
“cooperate to … prevent the relocation and transfer to other States of any
activities and substances that cause severe environmental degradation or are
found to be harmful to human health”.
9.6 Principle 22 of the Rio Declaration also recognised that: “Indigenous
people and their communities and other local communities have a vital role
in environmental management and development because of their knowledge
and traditional practices. States should recognise and duly support their
identity, culture and interests and enable their effective participation in the
achievement of sustainable development.”
9.7 It should not be surprising that one action -- the aerial spraying of
toxic herbicides with transboundary consequences -- should engage the
international responsibility of Colombia under different rules of
international law. They are not mutually exclusive, and a finding of a
violation in one area cannot of itself preclude a finding of a violation in
752U.N.G.A. Res. 45/94 (1990).
753
U.N. Doc. A/CONF.151/6/Rev. 1 (13 June 1992). In its Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, I.C.J. Rep. 1996 , at para. 29, this Court
referred to the human dimension of environmental protection: “The Court [also] recognizes
that the environment is not an abstraction but represents the living space, the quality of life
and the very health of human beings, including generations unborn.”
323another. Ecuador’s Application invites the Court to assess the actions of
Colombia by reference to each of the relevant obligations in general and
conventional international law.
9.8 This is consistent with the approach taken by various human rights
bodies, including the UN Human Rights Committee and UN Committee on
Economic, Social and Cultural Rights. The synthesis of human rights and
environmental protection is also consistent with the growing body of
754
environmental cases decided by human rights courts (referred to below) ,
and in the reports of the Special Rapporteur to the UN Sub-Commission on
the Prevention of Discrimination and Protection of Minorities, who has
recognised that the proclamation of an autonomous right to a healthy and
decent environment would enhance the social objective and the legal status
755
of promoting high standards of environmental quality .
9.9 International human rights treaties generally require a State Party to
guarantee the relevant rights and freedoms for every person within its
territory. This is the approach taken in particular by the American
756
Convention on Human Rights (Article 1) and the UN International
754
See also Manual on Human Rights and the Environment adopted by the Council of
Europe in 2005, in Committee of Experts for the Development of Human Rights, Final
Activity Report on Human Rights and the Environment , DH-DEV(2005)006rev, App. II.
(10 Nov. 2005).
755
See United Nations, Human Rights and the Environment, Final Report of the Special
Rapporteur (hereinafter “Final Report of the Special Rapporteur on Human Rights and the
Environment”), U.N. Doc. E/CN.4/Sub.2/1994/9 (6 July 1994). See also Human Rights and
the Environment, Preliminary Report of the Special Rapporteur , U.N. Doc.
E/CN.4/Sub.2/1991/8 (2 Aug. 1991); Human Rights and the Environment, Preliminary
Report of the Special Rapporteur, U.N. Doc. E/CN.4/Sub.2/1992/7 (2 July 1992).
756
American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S.
123 (18 July 1978). Article 1 establishes that: “The States Parties to this Convention
undertake to respect the rights and freedoms recognized herein and to ensure to all persons
324 757
Covenant on Civil and Political Rights (Article 2) . These treaties are not,
however, limited in their territorial scope; they impose obligations which are
violated when Colombia authorises actions in its own territory that have
consequences across the boundary, particularly where -- as in the present
case -- Colombia and Ecuador are part of the shared legal space to which
these instruments apply. The Court has taken this approach in its Advisory
Opinion on the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory, where it stated:
“The Court would observe that, while the jurisdiction of
States is primarily territorial, it may sometimes be exercised
outside the national territory. Considering the object and
purpose of the International Covenant on Civil and Political
Rights, it would seem natural that, even when such is the
case, State parties to the Covenant should be bound to
comply with its provisions.” 758
9.10 A similar approach is reflected in decisions of the Human Rights
Committee, the practice of which was explicitly invoked by the Court in the
above mentioned Advisory Opinion. As the Human Rights Committee put
it, formulations of obligations in Article 2 of the UN Covenant on Civil and
Political Rights:
“do not imply that the State party concerned cannot be held
accountable for violations of rights under the Covenant
which its agents commit upon the territory of another State,
subject to their jurisdiction the free and full exercise of those rights and freedoms, without
any discrimination…”.
757
International Covenant on Civil and Political Rights, U.N.G.A. Res. 2200A (XXI), U.N.
Doc. A/6316 (1966), 999 U.N.T.S. 171 (23 Mar. 1976). Article 2 points out that: “Each
State Party to the present Covenant undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the present
Covenant…”.
758 Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion, I.C.J. Rep. 2004, para. 109.
325 whether with the acquiescence o759he Government of that
State or in opposition to it” .
9.11 The obligations to respect human rights and the rights of indigenous
peoples are primarily grounded in treaties to which both Ecuador and
Colombia are parties. Like the environmental obligations referred to in the
previous chapter, however, they are also imported directly into the present
dispute by the 1988 Narcotics Convention. As argued more fully in Section
I of the previous chapter, Article 14(2) of that Convention provides that
measures to eradicate plants containing narcotic or psychotropic substances
“shall respect fundamental human rights and shall take due account of
traditional licit uses, where there is historic evidence of such use, as well as
the protection of the environment ”760. Article 14(2) is not limited to
fundamental human rights within the territorial jurisdiction of the State
concerned but applies equally to respect for the fundamental rights of
persons beyond its borders who are affected by the measures in question.
On that basis Ecuador’s case is that Colombia has violated not only
applicable provisions of inter alia the 1966 UN Covenants on Civil and
Political Rights and on Economic, Social and Cultural Rights, the 1969
Inter-American Convention on Human Rights, and the 1989 ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples in
759Lilian Celiberti de Casariego v. Uruguay, ICCPR Comm. No. 56/1979 (1981). See also
Delia Saldias de López v. Uruguay , ICCPR Comm. No. 52/1979 (1981), para. 12.3 (where
the Committee makes reference to Art. 5(1) of the Covenant on Civil and Political Rights,
which has its equivalent in Art. 29 of the American Convention of Human Rights, and
points out that in accordance with this article: “It would be unconscionto so interpret
the responsibility under article 2 of the Covenant as to permit a State party to perpetrate
violations of the Covenant on the territory of another State, which violations it could not
perpetrate on its own territory.” (Emphasis added.)
760United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances, Status of Treaty Adherence (hereinafter “1998 Narcotics Convention”) (1998).
EM, Vol. II, Annex 3. Emphasis added.
326Independent Countries, but additionally or alternatively the 1988 Narcotics
Convention, Article 14(2).
9.12 This chapter is divided into two main sections. Section I deals
specifically with the rights of indigenous peoples and addresses the manner
in which Colombia’s actions have violated the obligation to protect
indigenous peoples in accordance with applicable treaty provisions. Section
II addresses the violation more generally of the fundamental human rights of
all the affected populations in Ecuador.
Section I. Colombia Has Violated the Rights of Indigenous Peoples in
Ecuador
9.13 Due to the distinctive social and cultural traditions, special
vulnerability and historic ill-treatment of indigenous peoples, their rights
have received special attention in contemporary international law. They are
also of particular relevance in the circumstances of the present case. Two
general observations explain why.
9.14 Firstly, the UN Committee on Economic, Social and Cultural Rights
has expressed the close connection between the rights to life and health and
the well-being of indigenous peoples, having regard to the consequences of
displacement from their traditional lands:
“The vital medicinal plants, animals and minerals necessary
to the full enjoyment of health of indigenous peoples should
also be protected. The Committee notes that, in indigenous
communities, the health of the individual is often linked to
the health of the society as a whole and has a collective
dimension. In this respect, the Committee considers that
development-related activities that lead to the displacement
of indigenous peoples against their will from their traditional
327 territories and environment, denying them their sources of
nutrition and breaking their symbiotic relationship with their
761
lands, has a deleterious effect on their health.”
In the Yakye Axa Case , the Inter-American Court of Human Rights
expressly recognised the normative content of the right to health and its
relationship to indigenous communities 762.
9.15 Article 24 of the UN Declaration on the Rights of Indigenous
Peoples, adopted by the General Assembly in 2007, acknowledges the
importance for indigenous peoples of maintaining their traditional medicinal
763
and health practices . In this regard, accounts from the Awá, the Cofán
and the Kichwa nationalities in Ecuador describe health problems resulting
from the loss of traditional medicinal plants killed or damaged by
764
Colombia’s spraying of toxic herbicides .
9.16 Secondly, indigenous peoples are recognised to have a special
vulnerability that justifies measures of protection under international law.
The Inter-American Court of Human Rights has stated:
761
U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 14,
The Right to the Highest Attainable Standard of Health , U.N. Doc. E/C.12/2000/4 (2000),
para. 27.
762
Case of the Indigenous Community Yakye Axa v. Paraguay, Judgment (hereinafter
“Yakye Axa Case”), IACHR, Series C No. 125 (17 June 2005), para. 166.
763
United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc.
A/RES/61/295 (13 Sept. 2007) (Article 24 reads: “Indi genous peoples have the right to
their traditional medicines and to maintain their health practices, including the conservation
of their vital medicinal plants, animals and minerals.”).
764
See supra Chap. VI, Sec. IV; see also e.g., Witness 31 Declaration, op. cit. EM,Vol.
IV, Annex 215; Declaration of Witness 40, 20 Feb. 2009 (hereinafter “Witness 40
Declaration”), paras. 4, 6. EM, Vol. IV, Annex 223; Chancosa Declaration, op. cit., para. 3.
EM, Vol. IV, Annex 187; Witness 41 Declaration, op. cit., para. 4. EM, Vol. IV, Annex
224.
328 “As regards indigenous peoples, it is essential for the States
to grant effective protection that takes into account their
specificities, their economic and social characteristics, as
well as their situation of special vulnerability, their
customary law, values, and customs.” 765
9.17 Several international instruments set out measures to protect
indigenous peoples. In particular, their right to cultural identity is
guaranteed by Article 27 of the International Covenant on Civil and Political
Rights; a number of specific rights are protected by the 1989 ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries, and their right to property is guaranteed by Article
21 of the Inter-American Convention on Human Rights. Both Colombia and
Ecuador are parties to these instruments. Their respective constitutions
enunciate a series of principles aimed at safeguarding the rights of
indigenous communities, both general and specific, and to the individuals
within them 76. Both States have established special bodies charged with
the protection of the specific interests of these populations 767. The
Constitutional Court of Colombia has confirmed the significance of ILO
765Yakye Axa Case, para. 63.
766The Colombian Constitution of 1991 recognizes the ethnical and cultural diversity of the
Colombian Nation (Article 7).
767
See, e.g., Colombian Department of Indigenous Affairs of the Viceministry of the
Ministry of Interior and Justice (“ Dirección de Asuntos Indígenas del Viceministerio del
Interior del Ministerio del Interior y Justicia”); Secretariat of the Presidency of Ecuador for
Peoples, Social Movements, and Citizen Participation (“ Secretaria de la Presidencia de la
Republica de Pueblos, Movimientos Sociales y Participación Ciudadana” ); Commission
for the Development of Nationalities and Peoples in Ecuador (CODENPE - Consejo de
Desarrollo de las Nacionalidades y Pueblos del Ecuador”).
329Convention No. 169 for protection of the constitutional rights of indigenous
768
peoples .
A. V IOLATION OF A RTICLE 27 OF THE INTERNATIONAL COVENANT ON
C IVIL AND POLITICAL R IGHTS
9.18 Article 27 of the International Covenant on Civil and Political Rights
provides that:
“In those States in which ethnic, religious or linguistic
minorities exist, persons belonging to such minorities shall
not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess
and practise their own religion, or to use their own
language.”
The notion of “culture”, as expressed in this article, must be understood in a
broad sense. The UN Committee on Civil and Political Rights has
confirmed that:
“culture manifests itself in many forms, including a particular
way of life associated with the use of land resources,
especially in the case of indigenous peoples. That right may
include such traditional activities as fishing or hunting and
the right to live in reserves protected by law. The enjoyment
of those rights may require positive legal measures of
protection and measures to ensure the effective participation
of members o769inority communities in decisions which
affect them” .
768
Jaime Cordoba Triviño, National Ombudsman, in Representation of Persons Belonging
to the Indigenous Ethnic Group U’Wa , Judgment No. SU-039/97, Constitutional Court of
Colombia (3 Feb. 1997).
76U.N. CCPR, General Comment No. 23: The Rights of Minorities (ArtU.N. Doc.
CCPR/C/21/Rev.1/Add.5, (1994), para. 7. See also para. 3.2.
3309.19 It is pertinent to relate the cultural rights guaranteed by ICCPR
Article 27 to the definition of “culture” provided by the Inter-American
Court of Human Rights:
“The culture of the members of the indigenous communities
directly relates to a specific way of being, seeing, and acting
in the world, developed on the basis of their close
relationship with their traditional territories and the resources
therein, not only because they are their main means of
subsistence, but also because they are part of their
worldview, their religiosity, and therefore, of their cultural
identity.”770
9.20 The UN Human Rights Committee has considered a number of cases
involving breaches of Article 27 and the particular need for protection of
indigenous peoples’ rights. In Lovelace v. Canada , for example, the
Committee considered that denial of the possibility to live in an Indian
reserve amounted to a violation of Article 27, as the affected individual
would lose the “cultural benefits of living in an Indian community, the
emotional ties to home, family, friends and neighbours, and the loss of
771
identity” . In Lubicon Lake Band v. Canada , where the application
concerned the decision to allow private companies to exploit the natural
resources on the Band’s territory, the Committee considered that historical
770Yakye Axa Case, para. 135. See also Case of the Sawhoyamaxa Indigenous Community
v. Paraguay, Judgment, Inter-American Court of Human Rights (29 Mar. 2006) (hereinafter
“Sawhoyamaxa Case”), para. 118. The Court’s understanding of “culture” draws upon ILO
Convention No. 169, Article 13.
771
Sandra Lovelace v. Canada, ICCPR Comm. No. 24/1977, U.N. Doc.
CCPR/C/13/D/24/1977 (1981), para. 13.1.
331inequalities and development projects threatened the way of life and culture
of the Lubicon Lake Band and constituted a breach of Article 27 772.
9.21 In relation to the protection of the rights guaranteed under Article 27,
the Human Rights Committee has indicated the importance of consulting
with indigenous communities and allowing “the effective participation of
773
members of minority communities in decisions which affect them” .
9.22 In the present, case the rights of the indigenous Awá, Cofán and
Kichwa peoples and of the Afro-Ecuadorian communities in Esmeraldas, as
protected under ICCPR Article 27, have been gravely breached by
Colombia’s aerial spraying of toxic herbicides in the border area. As a
result of the damage detailed in Chapter VI, indigenous communities have
no longer been able to lead their particular way of life associated with the
774
use of land and natural resources, including fresh water . They have had
to abandon their traditional lands or, when remaining, have been unable to
grow sufficient healthy plants to produce their traditional foods and
775
medicines . For many of them, it has not been viable to continue
772Chief Bernard Ominayak and the Lubicon Lake Band (1984), ICCPR Comm. No.
167/1984, para. 33.
773Ilmari Lansman et al. v. Finland (1996), ICCPR Comm. No. 511/1992, para. 9.5. See
also Apirana Mahuika et al. v. New Zealand (2000), ICCPR Comm. No. 547/1993, para.
9.8 (where the committee considered that the process of consultations undertaken by New
Zealand was consistent with the requirements of Article 27).
774See supra Chap. VI, Section IV. “The Special Harms to Indigenous Communities..”
775See, e.g., Declaration of María Blanca Chancosa, 14 Jan. 2009 (hereinafter “Chancosa
Declaration”), paras. 3-4. EM, Vol. IV , Annex 187; Declaration of Witness 40, op. cit.,
para. 6. EM, Vol. IV, Annex 223; Declaration of Witness 27, 17 Feb. 2009 (hereinafter
“Witness 27 Declaration”). EM, Vol. IV, Annex 211; Declaration of Witness 28, 17 Feb.
2009 (hereinafter “Witness 28 Declaration.”). EM, Vol. IV, Annex 212. See also
Confederation of Indigenous Nationalities of Ecuador (CONAIE) et al., Technical Report of
the International Commission on the Impacts in Ecuadorian Territory of Aerial
332practicing their traditional rituals and healing practices 776, nor to engage in
fishing or hunting 777.
9.23 The Report by Special Rapporteur Stavenhagen indicates with
particular clarity how the aerial spraying of toxic herbicides has caused
indigenous peoples to abandon areas where they had previously lived,
778
hunted and fished . The impossibility of continuing with their traditional
779
lives has severely affected their culture and, as a result, their identity .
Ms. María Blanca Chancosa Sánchez is Kichwa and a leader of the
Confederation of Indigenous Nationalities of Ecuador (“CONAIE” per the
Spanish initials). She explains:
“for the indigenous people, the bond with Mother Earth
prevails in their lives. The land, the river, the natural forest
Fumigations in Colombia (hereinafter “CONAIE Report”) (19-22 July 2001), p. 12 (“But
now those plants are contaminated and they are turning against us. Now, we die as
strangers in our own land. This was our Eden and now we are suffering a tremendous
punishment.”). EM, Vol. IV, Annex 162.
776
See, e.g., Witness 27 Declaration, op. cit. EM, Vol. IV, Annex 211; Declaration of
Witness 29, 16 Jan. 2009 (hereinafter “Witness 29 Declaration”). EM, Vol. IV, Annex 213;
Declaration of Witness 41, 20 Feb. 2009 (hereinafter “Witness 41 Declaration”), para. 7.
EM, Vol. IV, Annex 224. See also CONAIE Report, op. cit., pp. 13, 22. EM, Vol. IV,
Annex 162.
777 See, e.g. , Witness 28 Declaration, op. cit. EM, Vol. IV, Annex 212; Witness 29
Declaration, op. cit. EM, Vol. IV, Annex 213; Witness 40 Declaration, op. cit., para. 7.
EM, Vol. IV, Annex 223; Witness 41 Declaration, op. cit., para. 6. EM, Vol. IV, Annex
224.
778 See, Report of the Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous People: Mission to Ecuador (25 April-4 May 2006),
(hereinafter “Report of the Special Rapporteur on the Rights of Indigenous People”) U.N.
Doc. A/HRC/4/32/Add.2 (28 Dec. 2006), para. 30. EM, Vol. II, Annex 30. (“[A]fter
spraying, the entire Sumac Pamba community was displaced and did not return to their
place of origin.”).
779
See, e.g., Declaration of Witness 26, 17 Feb. 2009 (hereinafter “Witness 26
Declaration”). EM, Vol. IV, Annex 210; Declaration of Witness 17, 16 Jan. 2009
(hereinafter “Witness 17 Declaration”). EM, Vol. IV, Annex 203; Declaration of Witness
31, 27 Feb. 2009 (hereinafter “Witness 31 Declaration”). EM, Vol. IV, Annex 215.
333 are their sacred places where they can be in contact with the
plants. Their relationship with the land, animals and the
environment of their territory is part of their being. Having to
abandon their land is like killing a part of the indigenous
780
person, he loses his centre” .
B. V IOLATION OF ILO C ONVENTION N O. 169
9.24 Pursuant to ILO Convention No. 169, the parties have a positive and
general obligation “to protect the rights of these peoples and to guarantee
respect for their integrity” by taking measures including the prohibition of
discrimination (Article 3), and taking specific steps aimed at “safeguarding
the persons, institutions, property, labour, cultures and environment of the
peoples concerned” (Article 4). The Convention also recognises the cultural
and other specificities of indigenous peoples and protects their social,
cultural, religious and spiritual values and practices. In applying the
Convention, Parties shall respect the integrity of the values, practices and
institutions of indigenous peoples (Article 5).
9.25 Article 13 of the ILO Convention is of particular importance because
it acknowledges that the connection between indigenous peoples and their
territories is essential for cultural survival and even for their right to a
781 782
decent existence and humane treatment . Article 13 provides that:
“governments shall respect the special importance for the
cultures and spiritual values of the peoples concerned of their
relationship with the lands or territories … which they
780Chancosa Declaration, op. cit., para 6. EM, Vol. IV, Annex 187.
781See infra Chap. IX, Sec. II, A. “The Right to Life”.
782
See infra Chap. IX, Sec. II, G. “The Right to Humane Treatment”.
334 occupy or otherwise use, and in particular the collective
aspects of this relationship”.
With regard to indigenous peoples, “land” should be understood in a broad
sense, including “the concept of territories, which covers the total
environment of the areas which the peoples concerned occupy or otherwise
783
use” . Under Article 7(4), “[g]overnments shall take measures, in
cooperation with the peoples concerned, to protect and preserve the
environment of the territories they inhabit”.
9.26 ILO Convention No.169 also recognises the importance of the rights
of indigenous peoples over their natural resources. Article 15 provides:
“The rights of the peoples concerned to the natural resources pertaining to
their lands shall be specifically safeguarded. These rights include the right
of these peoples to participate in the use, management and conservation of
these resources.” The Convention further determines (at Article 16) that
“the peoples concerned shall not be removed from the lands which they
occupy”.
9.27 The principles and rights reflected in the ILO Convention have been
recently restated by the UN General Assembly in the Declaration on the
Rights of the Indigenous Peoples of 2007 784. Of particular interest are
articles related to the rights of indigenous peoples to lands, territories and
785
resources , including the right to maintain their spiritual relationship with
783
ILO Convention No. 169, Art. 13.2.
784United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/61/L.67
(7 Sept. 2007).
785See ibid., Art. 26 & Art. 8.2(b).
335their lands and resources 786, and to not be forcibly removed from their
787
lands . Article 29 of the UN Declaration states:
“Indigenous peoples have the right to the conservation and
protection of the environment and the productive capacity of
their lands or territories and resources. … States shall take
effective measures to ensure that no storage or disposal of
hazardous materials shall take place in the lands or territories
of indigenous peoples without their free, prior and informed
consent.”
The UN Declaration stresses the importance of ensuring adequate
consultation, cooperation and participation of indigenous peoples before
788
adopting measures that may affect them .
9.28 Chapter VI of this Memorial and the reports of various UN Special
Rapporteurs 789 provide strong evidence that the toxic chemicals used by
Colombia have had harmful effects inter alia on the health, property,
culture, traditional lifestyles, natural resources and environment of the local
indigenous populations. On that basis Ecuador argues in the following
786See ibid., Art. 25.
787
See ibid., Art. 10.
788See, e.g., ibid., Art. 18 and 19.
789See Report of the Special Rapporteur on the Rights of Indigenous People, op. cit., paras.
28-33. EM, Vol. II, Annex 30; Report of the Special Rapporteur on the Right of Everyone
to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health,
Preliminary Note on the Mission to Ecuador and Colombia, (hereinafter “Special
Rapporteur on the Right to Health, Preliminary Note”), U.N. Doc. A/HRC/7/11/Add.3 (4
Mar. 2008), paras. 17-18. EM, Vol. II, Annex 31; Report of the Special Rapporteur on the
Right to Food, Jean Zieg ler, Addendum: Communications Sent to Governments and Other
Actors and Replies Received, (hereinafter “Report of the Special Rapporteur on the Right to
Food, Communications”) U.N. Doc. A/HRC/4/30/Add.1 (18 May 2007), paras. 15, 17.
EM, Vol. II, Annex 33; Adverse Effects of the Illicit Movement and Dumping of Toxic and
Dangerous Products and Wastes on the Enjoyment of Human Rights, Report of the Special
Rapporteur, Okechukwu Ibeanu, U.N. Doc. A/HRC/5/5 (5 May 2007), para. 20. EM, Vol.
II, Annex 32.
336paragraphs that Colombia’s aerial spraying of toxic herbicides in the border
area has resulted in serious violations of ILO Convention No. 169.
9.29 The main violations of ILO Convention No. 169 include, but are not
limited to:
(a) Article 4, on the need to safeguard the persons, property,
cultures and environment of the peoples concerned:
Colombia has failed to take any special measure to prevent
harm to indigenous peoples and to their territories and
envi790ment, including harm to their traditional way of
life .
(b) Article 5, on the need to protect the social, cultural, religious
and spiritual values of indigenous peoples: Colombia has not
taken any measure to prevent the rupture of the bond of
indigenous peoples with their land and natural resources,
with devastating consequences for the maintenance of their
values and culture 791.
(c) Article 6, on the obligation to consult the peoples concerned
whenever consideration is being given to measures which
may affect them directly: Colombia has failed to consult or
to provide for the participation of the affected indigenous
peoples in decisions being taken, and it has failed to provide
the most basic information to local communities, including
warnings about imminent sprayings, which would have
prevented serious harm to peoples’ health and food 792.
(d) Article 7, on the obligation to take measures to protect and
preserve the environment of the territories where indigenous
peoples live: As detailed in Chapters VI and VIII of this
Memorial, Colombia has failed to take adequate
precautionary measures to prevent herbicide pollution
damaging the forest, the watercourses, and the natural
790See supra Chap. VI, Sec. IV. “The Special Harm to Indigenous Communities”.
791See supra Chap. VI, Sec. IV. “The Special Harm to Indigenous Communities”.
792
See generally, supra, Ch. III.
337 resources on which indigenous communities are dependent
for their traditional lifestyle, culture, health and food
(e) Articles 13 and 15, on the need to respect the special
importance of their relationship with the lands or territories
for the cultures and spiritual values of the peoples concerned,
as well as to safeguard the peoples right to the natural
resources pertaining to their lands: Colombia has failed to
give consideration to the particularly harmful impacts of
herbicide spraying on the culture, lifestyle, natural resources,
land and territory of indigenous communities in the region
resulting from the destruction of their natural habitat, which
provides their centre of spirituality and their sources of food,
medicine and general well-being 794.
C. V IOLATION OF ARTICLE 21 OF THE A MERICAN CONVENTION ON
H UMAN RIGHTS
9.30 Article 21 of the American Convention on Human Rights has
provided the basis for claims by indigenous peoples to the use and
enjoyment of their ancestral lands795. In assessing the content and scope of
Article 21 of the American Convention, the Court has taken into account
several provisions of ILO Convention No. 169, including Article 13 referred
to earlier, and the UN Declaration on the Rights of Indigenous Peoples of 14
September 2007, particularly Article 8(2)(b). Colombia’s own
793See supra Chap. VI, Sec. IV; Chap. VIII, Sec. I.B. “Colombia has a Duty to Prevent
Significant Harm to persons, Property, Natural Resources and the Environment in
Ecuador”; Chap. VIII, paras. 8.16-8.17.
794
See supra Chap. VI, Sec. IV.
795Article 21 provides:
“1. Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation, for
reasons of public utility or social interest, and in the cases and according to the forms
established by law.
3. Usury and any other form of exploitation of man by man shall be prohibited by law.”
338Constitutional Court was one of the very first in Latin America to recognise
the vital importance of this connection, underscoring the need to protect the
cultural rights of indigenous communities in relation to the right to
property 796. Despite these international legal protections, and even its own
domestic protections, Colombia has fractured these vital anthropological
and cultural relationships through its chemical fumigations.
9.31 In the Mayagna (Sumo) Awas Tingni Community v. Nicaragua Case,
the Inter-American Court underscored the vital connection between
indigenous peoples and the land where they live:
“Given the characteristics of the instant case, some
specifications are required on the concept of property in
indigenous communities. Among indigenous peoples there is
a communitarian tradition regarding a communal form of
collective property of the land, in the sense that ownership of
the land is not centred on an individual but rather on the
group and its community. Indigenous groups, by the fact of
their very existence, have the right to live freely in their own
territory; the close ties of the indigenous people with the land
must be recognized and understood as the fundamental basis
of their cultures, their spiritual life, their integrity, and their
economic survival. For indigenous communities, relations to
the land are not merely a matter of possession and production
but a material and spiritual element which they must fully
enjoy, even to preserve their cultural legacy and transmit it to
797
future generations.”
796
See generally Willem Assies and Rosa Guillen, The Recognition of Indigenous Rights:
Colombian Jurisprudence and Proposals for Inigenous Jurisdiction in Ecuador and
Bolivia, Vol. I (2001). See also Constitutional Court of Colombia, Judgment T-652/98,
Fourth Decision (10 Nov. 1998).
797 The Case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment
(hereinafter “ Awas Tingni ”), IACHR (31 Aug. 2001), para. 149, available at
http://www.escr-net.org/usr_doc/seriec_79_ing.pdf.
3399.32 The Inter-American Court has thus recognised the importance of the
cultural dimension of the right to property when applied to indigenous
people, accepting that there is an inextricable connection between
indigenous peoples and their traditional territories and the associated natural
resources. The Inter-American Court pronounced itself in a similar fashion
798
in judgments in the Yakye Axa Case , in Moiwana Community v.
799 800
Suriname , in Sawhoyamaxa Indigenous Community v. Paraguay and in
801
Saramaka People v. Suriname .
9.33 The Inter-American Court has stressed that the realization of the
right to property involves the “right to own the natural resources they have
traditionally used within their territory,” noting that “the right to use and
enjoy their territory would be meaningless in the context of indigenous and
tribal communities if said right were not connected to the natural resources
that lie on and within the land” 80. According to the Inter-American Court,
Article 21 protects the “connectedness between the territory and the natural
resources necessary for [indigenous peoples’] physical and cultural
survival” 803.
9.34 The Inter-American Court has also noted the impact that a violation
of the right to property will have on the enjoyment of other human rights,
798
Yakye Axa Case, paras. 131, 135, 137.
799The Moiwana Community v. Suriname, Judgment (hereinafter “ Moiwana Community
Case”), IAHCR, Series C No. 145 (15 June 2005), para. 131.
800Sawhoyamaxa Case, para. 118.
801
Case of the Saramaka People v. Suriname, Judgment (hereinafter “Saramaka Case”),
IACHR, Series C No. 153 (28 Nov. 2007), paras. 90-91.
802
Ibid., paras. 121-122. (Emphasis added.)
803Ibid., para. 122.
340including the right to life. In the Yakye Axa Case, the Inter-American Court
ruled that “the State did not guarantee the right of the members of the Yakye
Axa Community to communal property” and concluded that “this fact has
had a negative effect on the right of the members of the Community to a
804
decent life” . A similar conclusion was reached in the Sawhoyamaxa
Case, concerning a displaced indigenous community, where Article 19 on
the rights of the child was found to have been breached in addition to the
right to life. In the Moiwana Community Case , the Inter-American Court
concluded that as a result of separation from traditional lands the right to
humane treatment had been violated 805.
9.35 The case law of the Inter-American Court thus makes clear that the
right to property as set out in general terms under Article 21 of the
American Convention on Human Rights is directly applicable to indigenous
communities, as a collective right, with consequences for the cultural and
physical survival of indigenous peoples.
9.36 For all of the reasons set out in the previous two sections and
supported by the evidence of significant harmful impacts in Chapter VI,
Colombia’s aerial spraying of herbicides in border areas constitutes a
violation of the right to property set out inter alia in Article 21 of the
American Convention insofar as the ability of indigenous peoples to occupy
and make use of their traditional lands in border areas has been adversely
affected.
804Yakye Axa Case, para. 168.
805
Moiwana Community Case, paras. 101-103.
341 D. C ONCLUSIONS
9.37 Colombia’s aerial spraying of toxic herbicides in border areas has
caused serious disruption of the traditional way of life of indigenous
communities who live, farm and hunt in the affected areas. Pollution
damage has significantly harmed the natural resources and environment on
which these communities depend. It has displaced some communities from
their homes, deprived them of traditional medicines, interfered with their
right to use and enjoy their property, and denied them the right to enjoy their
own culture.
9.38 Colombia has an obligation to respect and protect the rights of
indigenous communities, including those in Ecuador who are affected by its
aerial spraying. It also has a duty to preserve the environment on which
these communities depend. Its failure to have regard for the harmful effects
on these communities, or to ensure that they are consulted, or to take
adequate precautionary measures, amounts inter alia to a violation of
Article 27 of the International Covenant on Civil and Political Rights, of
Articles 4, 5, 6, 7, 13 and 15 of ILO Convention No. 169, and of Article 21
of the Inter-American Convention on Human Rights.
Section II. Colombia Has Violated Fundamental Human Rights in
Ecuador
9.39 As demonstrated in particular by the case law of the Inter-American
Court referred to below, it is unnecessary to draw a strict separation between
the rights of non-indigenous populations and those of indigenous ones. All
of them are human beings endowed with the same fundamental rights on the
basis of the non-discrimination principle referred to in the Declaration on
342the Rights of Indigenous Peoples adopted by the UN General Assembly on
14 September 2007 806.
9.40 Nor is it necessary in this section to rely only on decisions of the
Inter-American Court. Judge Higgins has drawn attention to the way human
rights courts “work consciously to co-ordinate their approaches” 807. There
is convergence in the case law and a cross-fertilisation of ideas between the
different human rights systems, as observed by Judge Cançado Trindade:
“The converging case-law to this effect has generated the
common understanding, in the regional (European and Inter-
American) systems of human rights protection, that human
rights treaties are endowed with a special nature (as
distinguished from multilateral treaties of the traditional
type); that human rights treaties have a normative character,
of ordre public ; that their terms are to be autonomously
interpreted; that in their application one ought to ensure an
effective protection (effet utile) of the guaranteed rights; that
the obligations enshrined therein do have an objective
character, and are to be duly complied with by the States
Parties, which have the additional common duty of exercise
of the collective guarantee of the protected rights; and that
permissible restrictions (limitations and derogations) to the
exercise of guaranteed rights are to be restrictively
interpreted. The work of the Inter-American and European
Courts of Human Rights has indeed contributed to the
creation of an international ordre public based808on the
respect for human rights in all circumstances.”
9.41 Accordingly, in this section of the Memorial Ecuador will rely not
only on the applicable case law of the Inter-American human rights system
806U.N. Declaration on the Rights of Indigenous Peoples, op. cit., Arts. 1 & 2.
807Rosalyn Higgins, A Babel of Judicial Voices?, 55 ICLQ 791 (2006), p. 798.
808
Case of Caesar v. Trinidad and Tobago, Separate Opinion of Judge Cançado Trindade,
IACHR, Series C No. 123 (2005), para. 7; see also paras. 6-12.
343but will also make reference where appropriate to decisions of other human
rights bodies, including the European Court of Human Rights and the
African Commission on Human and Peoples’ Rights. It will show that
Colombia has violated various provisions of the following human rights
conventions: the 1966 International Covenant on Civil and Political Rights,
the 1966 International Covenant on Economic, Social and Cultural Rights,
the 1969 Inter-American Convention on Human Rights, the 1979
Convention on the Elimination of All Forms of Discrimination Against
Women, the 1988 Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights, and the
1989 Convention on the Rights of the Child.
9.42 A range of different violations of fundamental human rights have
been engaged by Colombia’s spraying of toxic chemicals and their effects
on resident populations in the border areas of Ecuador. The present section
focuses first on those rights which may be considered most directly
associated with the right to life. These include the right to health, the right
to food, the right to water, and the right to a healthy and decent
environment. This section also deals with the right to property, the right to
humane treatment, the right to private life, and the right to information.
A. THE R IGHT TO LIFE
9.43 It is not necessary to stress that the right to lifper se the most
inherent of human rights, according to the categorisation enshrined in many
international instruments, including the International Covenant on Civil and
Political Rights (Article 6.1), the Convention on the Rights of the Child
344 809
(Article 6) , and the American Convention on Human Rights (Article 4).
810
It is a universal right and unquestionably part of general international law.
Colombia and Ecuador are parties to these three human rights treaties.
9.44 On several occasions the Inter-American Court of Human Rights has
underlined the essential features of the right to life. It has stressed that it is
both a fundamental and a positive right, which includes the right to have
access to conditions that guarantee a decent existence. In Villagran Morales
et al. v. Guatemala, the Court stated that:
“The right to life is a fundamental human right, and the
exercise of this right is essential for the exercise of all other
human rights. If it is not respected, all rights lack meaning.
Owing to the fundamental nature of the right to life,
restrictive approaches to it are inadmissible. In essence, the
fundamental right to life includes not only the right of every
human being not to be deprived of his life arbitrarily, but also
the right that he will not be prevented from having access to
the conditions that guarantee a decent existence. States have
the obligation to guarantee the creation of the conditions
required in order that violations of this basic right do not
occur and, in particular, the duty to prevent its agents from
violating it.” 811
809
U.N.G.A. Res. 44/25, Convention on the Rights of the Child, U.N. Doc. A/44/49 (1989),
entered into force 2 Sept. 1990.
810
See also African Charter of Human and Peoples’ Rights, O.A.U. Doc. CAB/LEG/67/3
rev. 5, entered into force 21 Oct. 1986,Art. 4; Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force 3 Sept. 1953, Art.
2.
811Villagran Morales et al. v. Guatemala, Judgment (hereinafter “Street Children Case”),
IAHCR, Series C No. 77 (19 Nov. 1999), para. 144.
345This statement has since been reiterated or referred to in several other cases,
812
including in the Yakye Axa Case , which is of particular relevance to
Ecuador’s case.
9.45 Articles 4 and 19 of the American Convention, as recognised by the
Inter-American Court, impose upon Colombia the obligation to protect with
even greater care and responsibility the right to life of children. In the
Yakye Axa Case, the Court indicated that
“the State has the obligation, inter alia, of providing for the
children of the Community the basic conditions to ensure that
the situation of vulnerability of their Community due to lack
of territory will not limit their development or destroy their
813
life aspirations” .
9.46 The right to life further implies a right to a decent existence. This
imposes on the State an obligation to generate “minimum living conditions
that are compatible with the dignity of the human person … and of not
creating conditions that hinder or impede it ” 81. The Inter-American Court
has identified the relationship between the right to life and other rights:
“Special detriment to the right to health, and closely tied to
this, detriment to the right to food and access to clean water,
have a major impact on the right to a decent existence and
basic conditions to exercise other human rights, such as the
815
right to education or the right to cultural identity.”
812 Yakye Axa Case , para 161. See also Juvenile Reeducation Institute v. Paraguay ,
Judgment (hereinafter “Juvenile Reeducation Institute Case”), IACHR, Series C No. 112 (2
Sep. 2004), para. 156.
813
Yakye Axa Case , para. 172. See also Juvenile Reeducation Institute Case, para. 160;
Street Children Case, para. 196; Juridical Condition and Human Rights of the Child ,
Advisory Opinion OC-17/2002, IACHR (28 Aug. 2002), paras. 80-81, 84, 86-88.
814
Yakye Axa Case, para. 162 (emphasis added).
815Ibid., para. 167.
3469.47 As already noted in the previous section and in Chapter VI, the right
to life of indigenous communities in the areas affected by the sprayings has
been directly affected, as a result of their close dependence on the natural
resources found in their traditional lands. In the Yakye Axa Case, the Inter-
American Court recognised that the State has a special duty to guarantee the
right to a decent life “in the case of persons who are vulnerable and at risk,
816
whose care becomes a high priority” ; the Court concluded that lack of
access by indigenous peoples to traditional means of subsistence, as well as
to use and enjoyment of the natural resources necessary to obtain clean
water and to practice traditional medicine to prevent and cure illnesses,
resulted in a breach of the right to a decent existence, as recognised in
Article 4 of the American Convention 817.
9.48 Pollution from Colombian spraying of toxic herbicides poses a well-
documented risk to life and human health. The evidence shows that it has
harmed access to food and clean water, and denied those living in affected
border areas of Ecuador the decent existence to which they are entitled. By
failing to take the measures necessary to protect the right to life, Colombia
has violated the International Covenant on Civil and Political Rights (Article
6.1), the Convention on the Rights of the Child (Article 6), and the
American Convention on Human Rights (Article 4).
B. THE RIGHT TO HEALTH
9.49 The right to health is guaranteed in Article 12(1) of the International
Covenant on Economic, Social and Cultural Rights; States parties recognise
816Ibid., paras. 162.
817
Ibid., paras. 162-168, 176.
347“the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health”. It is also reiterated in Article 12 of the
Convention on the Elimination of All Forms of Discrimination against
Women, in Article 24 of the Convention on the Rights of the Child, and in
Article 10 of the Protocol of San Salvador 81.
9.50 In accordance with the UN Committee on Economic, Social and
Cultural Rights’ (CESCR) General Comment No. 14 on the right to health,
this right is not limited to the right to health care:
“the right to health embraces a wide range of socio-economic
factors that promote conditions in which people can lead a
healthy life, and extends to the underlying determinants of
health, such as food and nutrition, housing, access to safe and
potable water and adequate sanitation, safe and healthy
working conditions, and a healthy environment” 819.
Article 12(2)(b) of the Covenant imposes a positive obligation on the parties
to take appropriate measures aimed at “the improvement of all aspects of
environmental…hygiene”. According to the CESCR, this includes an
obligation of:
“prevention and reduction of the population’s exposure to
harmful substances such as radiation and harmful chemicals
or other detrimental environmental conditio820that directly or
indirectly impact upon human health” .
818
Art. 10.1 of the Protocol of San Salvador reads as follows: “Everyone shall have the
right to health, understood to mean the enjoyment of the highest level of physical, mental
and social well-being.”
819
U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 14,
The Right to the Highest Attainable Standard of Health (Article 12 of the International
Covenant on Economic, Social and Cultural Rights) (hereinafter “General Comment No.
14”), U.N. Doc. E/C.12/2000/4 (11 Aug. 2000), para. 11.
820Ibid., para. 15.
3489.51 The detrimental effects of aerial spraying of toxic chemicals on the
health of local communities in Ecuador have been described in Chapter VI
of this Memorial 821. After aerial spraying, or when in contact with polluted
water, individuals have regularly developed the following symptoms: skin
rashes and itching; eye, nose and throat irritation and burning; fever;
headaches; diarrhea; vomiting; abdominal pain; dry cough and respiratory
problems; blurred vision; and weakness or dizziness, among others 822. The
evidence shows that these and other symptoms have been accompanied by
psychological stress and fear 823. The nature and extent of these symptoms
of toxic spraying indicate Colombian responsibility for failing to respect the
right to health of the affected populations in Ecuador.
9.52 Children are more vulnerable to toxic effects and have been
particularly affected by illnesses following aerial spraying of herbicides.
The evidence shows that they are often the first to fall ill after the aerial
824
sprayings . Shortly after sprayings many children in a community
825
experience skin irritation, diarrhea and vomiting . Numerous accounts
821See supra Chap. VI, Sec. I.
822See supra Chap. VI, Sec. I.
823
See supra Chap. VI, paras. 6.7, 6.18, 6.19, 6.28, 6.35, 6.109, 6.119. See also e.g. ,
Declaration of Witness 5, 16 Jan. 2009 (hereinafter “Witness 5 Declaration”). EM, Vol.
IV, Annex 193; Declaration of Witness 9, 16 Jan. 2009 (hereinafter “Witness 9
Declaration”). EM, Vol. IV, Annex 197.
824
See supra Chap. VI, paras. 6.10 and 6.13.
825
See supra paras. 6.10, 6.13, 6.15, 6.17, 6.18, 6.26-6.28, 6.33-6.35, 6.38-6.39, 6.50,
6.126, 6.127, 6.129-6.130; see also e.g., Declaration of Witness 2, 16 Jan. 2009 (hereinafter
“Witness 2 Declaration”). EM, Vol. IV, Annex 190; Declaration of Witness 5, 16 Jan.
2009 (hereinafter “Witness 5 Declaration”). EM, Vol. IV, Annex 193. Declaration of
Witness 20, 16 Jan. 2009 (hereinafter “Witness 20 Declaration”). EM, Vol. IV, Annex 206.
349explain how illnesses have persisted for months after the sprayings have
826
occurred .
9.53 As described in Chapter VI 827, the deaths of a number of infants
have been reported following spraying events. A Kichwa mother in the
community of San Francisco 2 described how she lost a three-month old
baby one week after the sprayings, and how two years later, during a further
round of fumigations, she lost her four-month old daughter 828. Records
indicate that during the first eight days of intense sprayings in the area of
San Francisco 2 in January 2001, four children died 829.
9.54 That the spray can cause the death of children in the conditions
prevalent in the border region is, sadly, not surprising. As discussed in
Chapter V, the chemicals in Colombia’s herbicidal mix are well-known to
cause gastro-intestinal distress, including vomiting and diarrhea. And as
noted just above, these were among the most commonly reported symptoms
by children in Ecuador. Although these conditions are generally treatable in
developed countries, they are frequently life-threatening in remote areas of
the developing world, like northern Ecuador, due in part to the inadequate
health care that characterise these impoverished areas.
826
See, e.g., Witness 5 Declaration, op. cit. EM, Vol. IV, Annex 193; Witness 17
Declaration, op. cit. EM, Vol. IV, Annex 203; Declaration of Witness 12, 16 Jan. 2009
(hereinafter “Witness 12 Declaration”). EM, Vol. IV, Annex 200.
827
See supra Chap. VI, paras. 6.50, 6.129, 6.130.
828Declaration of Witness 11, 16 Jan. 2009 (hereinafter “Witness 11 Declaration”). EM,
Vol. IV, Annex 199. See also Witness 12 Declaration, op. cit. EM, Vol. IV, Annex 200.
829See CONAIE Report, op. cit., p. 13. EM, Vol. IV, Annex 162.
3509.55 Indigenous peoples living along the border have reported health
problems similar to those of farming communities in the region. However,
indigenous communities have at times endured greater hardship due to their
greater dependence upon the natural environment and their vulnerability to
changes to it. This has been recognised by the UN Special Rapporteur on
the Rights of Indigenous People 830.
9.56 Violations of the right to food and the right to water, discussed
below also engage a breach of the obligation to respect the right to health.
In the present case, the right to health of the Ecuadorian population along
the border has been violated because of the exposure to toxic herbicides, by
the contamination of drinking water sources, and because of the destruction
of crops that constitute the basis of their nutrition and medicine 831. Paul
Hunt, the UN Special Rapporteur on the Right to Health, has observed:
“In my opinion, there is an overwhelming case that the aerial
spraying of glyphosate along the Colombia-Ecuador border
should not re-commence. … In summary, Colombia has a
human rights responsibility of international assistance and
cooperation, including in health. Consequently, as a
minimum, Colombia must not jeopardize the enjoyment of
the right to health in Ecuador. It must ‘do no harm’ to its
832
neighbour.”
830
Report of the Special Rapporteur on the Rights of Indigenous People, op. cit., paras. 28-
30.
831See supra Chap. VI, paras. 6.16, 6.27, 6.37, 6.40, 6.49; see also supra, Chap. VI, Secs. II
and IV.
832U.N. Press Release, “U.N. Special Rapporteur on the Right to the Highest Attainable
Standard of Health, Paul Hunt, Ends Visit to Ecuador” (hereinafter “Special Rapporteur on
the Right to Health, 2007 Press Release”) (18 May 2007), available at
www.unhchr.ch/huricane/huricane.nsf/view01/42D1F65F4D223B17C12572E40033…?
opendocument (last visited 13 Apr. 2009). EM, Vol. IV, Annex 185.
351In his final report he set out compelling conclusions on the mission to
Ecuador and Colombia in 2007:
“The Special Rapporteur’s preliminary view was that there
was credible and reliable evidence that the aerial spraying of
glyphosate along the border damages the physical and mental
health of people living in Ecuador.”833
C. THE RIGHT TO FOOD
9.57 Closely related to the right to life and the right to health is the right
to food, which has also been engaged by Colombia’s aerial spraying of toxic
herbicides. Article 11(2) of the International Covenant on Economic, Social
and Cultural Rights, declares that the States Parties recognise “the
834
fundamental right of everyone to be free from hunger” . This right is also
recognised in Article 27 of the Convention on the Rights of the Child, and in
Article 12 of the Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights, known
835
as the “Protocol of San Salvador” . Colombia and Ecuador are parties to
all three treaties.
9.58 According to General Comment No. 12 on the right to adequate
food, adopted by the UN Committee on Economic, Social and Cultural
Rights (CESCR) in 1999, “the right to adequate food is indivisibly linked to
833
Report of the Special Rapporteur on the Right to Health, Preliminary Note , U.N. Doc.
A/HRC/7/11/Add.3 (4 Mar. 2008), para. 17. EM, Vol. II, Annex 31.
834
U.N.G.A. Res. 2200A (XXI), International Covenant on Economic, Social and Cultural
Rights, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force 3 Jan. 1976.
835Additional Protocol to the American Convention on Human Rights in the Area of
Economic, Social and Cultural Rights, (hereinafter “Protocol of San Salvador”), O.A.S.
Treaty Series No. 69 (1988), entered into force November 16, 1999.
352the inherent dignity of the human person and is indispensable for the
fulfilment of other human rights enshrined in the International Bill of
836
Human Rights” . This General Comment is an authoritative interpretation
of Article 11 of the ICESCR. It recognises that:
“The right to adequate food is realized when every man,
woman and child, alone or in community with others, has
physical and economic access at all times to adequate food or
means for its procurement. The right to adequate food shall
therefore not be interpreted in a narrow or restrictive sense
which equates it with a minimum package of calories,
proteins and other specific nutrients.” 837
9.59 General Comment No. 12 indicates that this right’s core content
implies the availability of food in a quantity and quality sufficient to satisfy
the dietary needs of individuals, free from adverse substances and
838
acceptable within a given culture . This right imposes an obligation on
839
Colombia to respect, protect and fulfil the right to food , including in areas
840
outside its jurisdiction . As shown in Chapter VI, aerial spraying of toxic
herbicides in border areas has degraded and in some cases destroyed the
normal subsistence foodstuffs of local communities in Ecuador. As
repeatedly reported by farmers and indigenous peoples in Sucumbíos and
Esmeraldas, after each spraying plantations were damaged to the point of
836U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 12,
The Right to Adequate Food (Article 11), U.N. Doc. E/C.12/1999/5 (12 May 1999), para. 4.
837
Ibid., para. 6.
838Ibid., para. 8.
839Ibid., para. 15.
840
Report of the Special Rapporteur on the Right to Food, Jean Ziegler , (hereinafter
“Special Rapporteur on the Right to Food, 2008 Report”), U.N. Doc. A/HRC/7/5 (10 Jan.
2008), paras. 21-23; Report of the Special Rapporteur on the Right to Food, Jean Ziegler ,
(hereinafter “Special Rapporteur on the Right to Food, 2006 Report”), U.N. Doc.
E/CN.4/2006/44 (16 Mar. 2006), paras. 28-38, especially para. 35.
353destruction; plants that survived did not produce healthy crops and their
production capacity was significantly diminished 841.
9.60 As already described, many of the communities in the areas affected
by the aerial spraying are heavily dependent on farm-reared animals and
fishing in local rivers for additional sources of protein. Some of these
communities hunt wildlife for food. There is evidence that after each round
of Colombia’s aerial sprayings, chicken and other fowl sickened and died,
842
and young live-stock in particular often did not survive . There are
accounts of pigs, calves, and dogs dying following the aerial sprayings, and
843
cows are reported to have lost their young . A number of individuals have
described mass fish-kills in ponds and rivers following the aerial sprayings,
844
with fish appearing unhealthy and, as a consequence, inedible .
9.61 Many accounts of damage to plants and animals have been collected
in the reports of verification missions to the area, conducted between 2001
845
and 2007, as described in Chapter VI . Some reports describe first-hand
observations by Ecuador’s Director of Environmental Management for the
841
See supra Chap. VI, Sec. II.
842See supra Chap. VI, paras. 6.83, 6.84, 6.88-6.90, 6.97.
843See supra Chap. VI, paras. 6.84, 6.90, 6.94, 6.97, 6.98.
844
See supra Chap. VI, paras. 6.85, 6.91-6.93, 6.99, 6.100; see also e.g., Witness 40
Declaration, op. cit., para. 7. EM, Vol. IV, Annex 223; Witness 28 Declaration, op. cit.
EM, Vol. IV, Annex 212; Declaration of Witness 10, 16 Jan. 2009 (hereinafter “Witness 10
Declaration”). EM, Vol. IV, Annex 198; Letter from Victor Mestanza to Roger Mera,
Regional Chief Sucumbíos-Orellana, Ministry of the Environment (14 Oct. 2002), p. 1.
EM, Vol. IV, Annex 237.
845 See supra Chap. VI, Secs. II.A. “Independent Reports” and III.A. “Independent
Reports.”
354Ministry of Agriculture and Livestock 846, by the Director of the National
Directorate for the Defence of the Rights of Indigenous Peoples (DINAPIN)
of the office of the National Ombudsman of Ecuador 847, and by
representatives of the Provincial Government of Sucumbíos 848. These
reports describe extensive damage to plantations of maize, plantain, rice,
coffee, cacao, and other staple foods of the local communities, such as
yucca. The loss of animals is also widely reported 849. These extensive
losses in Ecuador are consistent with the damage that has been described on
the Colombian side of the border 85.
9.62 This has given rise to serious concerns at the international level. The
UN Special Rapporteur on the Rights of Indigenous People, Mr. Rodolfo
Stavenhagen, went on mission to Ecuador between 24 April and 4 May
2006. In his report to the Human Rights Council, he described a dire
situation:
“In some communities in Sucumbíos, short-cycle crops are
disappearing fewer than 15 days after spraying.… Spraying
appears to be destroying subsistence crops, diminishing soil
quality and reducing yields, affecting both the economic
activities of comm851ties and the population’s access to
adequate food.”
846Ecuadorian Ministry of Environment et al., Impacts in Ecuador by the Fumigations
Carried Out in the Putumayo Department under Plan Colombia (hereinafter “Impacts in
Ecuador”) (July 2003), pp. 7-10. EM, Vol. IV, Annex 166.
847See, ibid., pp. 14-18.
848
See, ibid., pp. 19-22.
849See, e.g., ibid., pp. 9, 14, 17 and 20.
850See supra Chap. V, Sec. IV. “The Harms Caused by Colombia’s Aerial Spraying of
Toxic Herbicides Inside Colombia.”
851Report of the Special Rapporteur on the Rights of Indigenous People, op. cit., paras. 29-
30. EM, Vol. II, Annex 30.
3559.63 The UN Special Rapporteur on the Right to Food, Mr. Jean Ziegler,
in his communications to the governments of Colombia and of Ecuador of
2007, raised his concerns over the consequences of aerial sprayings with
regard to the right to food. He reported:
“as a consequence of the fumigations under the Plan
Colombia, among others, the destruction of subsistence
crops, the weakening of soil quality and the reduction of
production capacity of the border populations, a majority of
which are inhabited by indigenous people and peasants.
These populations, mostly indigenous and peasants, have
seen great deterioration in their already difficult socio-
economic situation…Several communities have lost their
livestock and there are reports of an increase in birth defects
and miscarriages of cattle near the border, during and after
the sprayings. All of this seems to have caused a severe state
of food insecurity in border populations, thus triggering a
wave of migration to the interior of the country. According to
reports, malnutrition, a constant feature in impoverished
communities, has reached alarming levels. In other
communities, short-cycle crops are disappearing in less than
15 days after spraying” 85.
9.64 As described in Chapter VI, Colombia’s aerial spraying of herbicides
has caused local communities in Ecuador to go without food in a quantity
and quality sufficient to satisfy their basic dietary needs, free from toxic
substances, and acceptable within the given culture. Speaking as well on
behalf of the Special Rapporteur on the Rights of Indigenous Peoples, the
Special Rapporteur on the Right to Food stated:
852
Report of the Special Rapporteur on the Right to FoU.N. Doc. A/HRC/4/30/Add.1
(18 May 2007), para. 15. EM, Vol. II, Annex 33.
356 “As to the right to food, the concern of the Special
Rapporteurs is not just limited to food security risk but also
to the right to food free from harmful substances.” 853
9.65 The destruction of short-cycle crops and domestic and wild animals
after each round of aerial spraying has brought tremendous hardship to
farmers and indigenous peoples, most of whom have subsistence economies
and live already in conditions of high vulnerability. Hunger resulting from
pollution and destruction of subsistence food supplies has forced many
families to move inland, away from the border with Colombia:
“As a result of the damages to health, nature, and our sources
of food and spirituality, some people had to move to other
Awá communities within the reserve, which were farther
from the border and not affected by the sprayings. They
made this decision in order to avoid health problems caused
by the fumigations and the death of their crops, because they
no longer had the means to survive.” 854
9.66 For those who have remained, difficulties are considerable. Witness
26, of Cofán nationality, who resides within the Cofán territory affected by
the sprayings, explains:
“From three or four small farms, it can be that only one
yucca is good, which is why the community shares
everything; but there is more hunger, there is not enough
855
food for everyone.”
It is worth recalling that this region was already characterised, before the
sprayings began, as one having “a higher level of malnutrition among the
853Ibid., para. 17.
854
Witness 40 Declaration, op. cit., para. 8. EM, Vol. IV, Annex 223.
855Witness 26 Declaration, op. cit. EM, Vol. IV, Annex 210; see also e.g., Declaration of
Witness 1, 16 Jan. 2009 (hereinafter “Witness 1 Declaration”). EM, Vol. IV, Annex 189;
Declaration of Witness 19, 17 Jan. 2009 (hereinafter “Witness 19 Declaration”). EM, Vol.
IV, Annex 205.
357school-age population than in the same population over 20 km away from
856
the border.” Herbicide spraying has caused significant harm in one of
Ecuador’s most vulnerable and inaccessible areas, in a manner that directly
engages Colombia’s responsibility for failing to protect the right to food.
D. T HE R IGHT TO W ATER
9.67 The right to water is also closely linked to the enjoyment of other
fundamental rights, including the right to life and the right to health. No one
can live without water. The right to water is expressly recognised in the
Convention on the Elimination of All Forms of Discrimination Against
857
Women of 1979 (Article 14.2.h) and in the Convention on the Rights of
858
the Child of 1989 (Article 24, 2.c) . Colombia and Ecuador are parties to
both treaties.
9.68 General Comment No. 15 on the right to water (2002) notes that
Articles 11(1) and 12(1) of the International Covenant on Economic, Social
and Cultural Rights encompass a right to water:
“Article 11, paragraph 1, of the Covenant [on economic,
social and cultural rights] specifies a number of rights to an
adequate standard of living including adequate food, clothing
and housing. The use of the word ‘including’ indicates that
this catalogue of rights was not intended to be exhaustive.
The right to water clearly falls within the category of
guarantees essential for securing an adequate standard of
856
Ecuadorian Scientific Commission, The Plan Colombia Aerial Spraying System and its
Impacts on the Ecosystem and Healt h on the Ecuadorian Border (hereinafter “Ecuadorian
Scientific Commission Report”) (April 2007), p. 53. EM, Vol. III, Annex 153.
857
U.N.G.A. Res. 34/180, Convention on the Elimination of All Forms of Discrimination
Against Women, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into
force 3 Sept. 1981.
858Convention on the Rights of the Child, op. cit.
358 health (Art. 12, para. 1) and the rights to adequate housing
and adequate food (Art. 11, para. 1). The right should also be
seen in conjunction with other rights enshrined in the
International Bill of Human Rights, foremost amongst them
the right of life and human dignity.” 859
9.69 General Comment No. 15 sets out the right as follows:
“The human right to water entitles everyone to sufficient,
safe, acceptable, physically accessible and affordable water
for personal and domestic uses. An adequate amount of safe
water is necessary to prevent death from dehydration, to
reduce the risk of water-related disease and to provide for
consumption, cooking, personal and domestic hygienic
requirements.” 860
The right to water thus includes the right to maintain access to existing
water sources and the right to be free from contamination of water
861
supplies .
9.70 Local communities in the border area between Colombia and
Ecuador have no access to running water. Farmers and indigenous peoples
depend on water from the local rivers to cook, drink, wash, bathe or raise
domestic animals. The aerial spraying of toxic herbicides pollutes their
859
U.N. Committee on Economic, Social and Cultural Rights, General Comment No. 15,
The Right to Water (Arts. 11 and 12 of the International Covenant on Economic, Social and
Cultural Rights), (hereinafter “General Comment No. 15”), U.N. Doc. E/C.12/2002/11 (26
Nov. 2002), para. 3. For a commentary, see P.M. Dupuy, Le droit à l’eau, droit de l’homme
ou droit des Etats? , in Liber Amicorum Lucius Caflish, La promotion de la justice, des
droits de l’homme et du règlement des conflits par le droit internation(2007), pp. 701-
716. See also the reference to “vital human needs” in the 1997 U.N. Convention on the
Non-Navigational Uses of International Watercourses, Article 10. The U.N. 6 tcommittee
commentary indicates that: “In determining ‘vital human needs’ special attention is to be
paid to providing sufficient water to sustain human life, including both drinking water and
water required for the production of food in order to prevent starvation." Rept. of the 6th
Committee Working Group, GAOR A/51/869 (1997).
860
Ibid., para. 2.
861Ibid., paras. 2, 10 and 11.
359water supplies. The evidence of pollution of these rivers and of drinking
water supplies and damage to fish has been widely observed:
“People, upon bathing in the streams, found that the San
Miguel River caused bumps on our skin, gave us headaches,
nausea, stomach pains, the flu, and especially body aches.” 862
“The Charapa River of this Village [Santa Marianita] is
contaminated, so that whoever bathes here finds their skin
affected. Animals such as cows, goats and fish have died.” 863
“We stopped drinking the water from the river [a tributary of
the border river] and instead started drinking water from a
spring and the illness stopped.” 864
9.71 Investigations by Ecuador’s authorities confirm these conclusions:
“It is evident that, the health situation in the communities
visited has deteriorated because of the fumigations, not only
due to direct effects on the health of people from the spraying
of substances, and direct contact with the skin and mucus
glands, but also due to the ingestion of contaminated water
and food.” 865
9.72 Independent corroboration has been provided by the UN Special
Rapporteur on the Right to Food, referring to the situation of communities
in the basin of the Mira River, which flows through the Mataje River which
constitutes the border with Colombia, in the Province of Esmeraldas:
862
“Impacts in Ecuador,” op. cit., p. 12. EM, Vol. IV, Annex 166.
863
Ibid., p. 15.
864CONAIE Report, op. cit., p. 17.
865
National Congress of the Republic of Ecuador, Commission for Health, Environment,
and Ecological Protection, Congressman Miguel López Moreno, Report of the Visit to
Communities on the Border Cordon of the Province of Sucumbíos (hereinafter
“Congressional Visit to Communities”) (12-15 Dec. 2003), p. 5. EM, Vol. IV, Annex 167.
360 “In many rivers, among them the Mira River, which flows
into Ecuadorian territory, a high percentage of the remnants
of the chemical product used in the sprayings carried out in
Colombian territory has been detected. The situation of the
communities which sit near the Mira River, in the province
of Esmeraldas, is troublesome due to the fact that the river is
used for the personal and domestic uses of these
866
communities.”
9.73 The Special Rapporteur has linked the aerial spraying with pollution
of the river and harm to health: “…the contamination of the waters of the
867
rivers threatens the communities’ right to health” . The Special
Rapporteur on the Rights of Indigenous Peoples, Mr. Stavenhagen, has
868
come to the same conclusions .
9.74 The evidence demonstrates that Colombia is responsible for failing
to protect the right of access to safe and healthy water. By polluting the
rivers and springs from which the affected farmers and indigenous peoples
in Ecuador draw their essential livelihoods Colombia has endangered the
health and well-being of the most vulnerable populations living along the
Ecuador-Colombia border, and significantly interfered with their rights to
water, life, health, property and private life.
E. T HE R IGHT TO A H EALTHY E NVIRONMENT
9.75 Colombia’s herbicide spraying also gives rise to a violation of the
obligation to respect the right to a healthy and decent environment. This
866Report of the Special Rapporteur on the Right to Food, op. cit., para. 23.
867
Ibid.
868See Report of the Special Rapporteur on the Rights of Indigenous People, op. cit., para.
29. See also at para. 30. EM, Vol. II, Annex 30.
361right is recognised by the Protocol of San Salvador, to which Colombia and
Ecuador are parties. Article 11 (entitled the Right to a Healthy
Environment) provides:
“1. Everyone shall have the right to live in a healthy
environment and to have access to basic public services.
2. The States Parties shall promote the protection,
preservation, and improvement of the environment.”
9.76 What constitutes a healthy environment must be determined by
reference to the natural, social, economic and cultural character of the
region in question. In the present context, the case law of the Inter-
American Court of Human Rights and the Constitutional Court of Colombia
are of particular interest.
9.77 The right to a healthy environment has not yet been the subject of an
authoritative interpretation by the Inter-American Court of Human Rights,
since Article 19 of the Protocol of San Salvador indicates that no individual
petitions concerning a violation of this right can be filed. However, the
Inter-American Court has considered Article 11 of the Protocol “in
connection with” other rights protected under the American Convention. In
the Yakye Axa Case referred to above, the Inter-American Court had regard
to the right to a healthy environment in order to ascertain “whether the State
generated conditions that worsened the difficulties of access to a decent life
869
for the members of the Yakye Axa Community” . The Inter-American
Court concluded that the right to a decent life had been violated.
869Yakye Axa Case, para. 163.
3629.78 The Inter-American Court’s decision in the Saramaka Case also
confirms that the exercise of fundamental human rights protected by the
American Convention is dependent upon the enjoyment of a decent and
healthy environment. Threats to indigenous peoples’ natural environment
resulting from logging or other concessions, or the impossibility to exercise
land rights effectively, were held to breach the right to property:
“The logging concessions issued by the State in the Upper
Suriname River lands have damaged the environment and the
deterioration has had a negative impact on lands and natural
resources traditionally used by members of the Saramaka
people…The State failed to carry out or supervise
environmental and social impact assessments and failed to
put in place adequate safeguards and mechanisms in order to
ensure that these logging concessions would not cause major
damage to Saramaka territory and communities. Furthermore,
the State did not allow for the effective participation of the
Saramakas in the decision-making process regarding these
logging concessions, in conformity with their traditions and
customs…All of the above constitutes a violation of the
property rights of the members of the Saramaka people
recognized under Article 21 of the Convention, in connection
870
with Article 1.1 of said instrument.”
9.79 It is plain that the right to a healthy environment is closely related to
the enjoyment of several other fundamental rights. The UN Special
Rapporteur on Human Rights and the Environment has stressed this
871
interdependence , and a number of domestic courts have acknowledged
872
it . Among these decisions is the case law from Colombia, the courts of
870
Saramaka Case, para. 154.
871See generally , Final Report of the Special Rapporteur on Human Rights and the
Environment, op. cit.
872For a review of domestic case law, see among others, background papers from the Joint
UNEP-OHCHR Expert Seminar on Human Rights and the Environment , 14-16 January
2002, Geneva, available at http://www.unhchr.ch/environment/index.html; see also S.
363which have been leaders in giving effect to the right to a healthy
environment, which is explicitly recognised in Article 79 of the Colombian
873
Constitution of 1991 . An eloquent statement by the Court of First
Instance of Tuluá, in Colombia, subsequently upheld by the Colombian
Constitutional Court in the leading case of Fundepúblico v. Mayor of
Bugalagrande and others (1991-1992), describes the interdependence
between the right to a healthy environment and other human rights:
“Everyone has the right to enjoy and live in a healthy
environment. This should be regarded as a fundamental
human right, which is a prerequisite and basis for the
exercise of other human, economic and political rights. It
should be recognised that a healthy environment is a sine qua
non condition for life itself and that no right could be
874
exercised in a deeply altered environment.”
9.80 At the international level, the connection has been recognised by the
African Commission on Human and Peoples’ Rights in the Ogoniland Case
(Social and Economic Rights Action Centre and the Centre for Economic
and Social Rights v. Nigeria ); the Commission confirmed the special link
Kravchenko and J. E. Bonine, Human Rights and the Environment: Cases, Law, and Policy
(2008).
87The Constitution of Colombia of 1991, Article 79 states: “Every person has the right to
enjoy a healthy environment. The law will guarantee the community's participation in the
decisions that may affect it. It is the duty of the state to protect the diversity and integrity of
the environment, to conserve areas of special ecological importance, and to foster education
for the achievement of these ends.” Unofficial English translation, available at
http://confinder.richmond.edu/admin/docs/colombia_const2.pdf.
874Fundepúblico v. Mayor of Bugalagrande and Others, Judgment T-415, Constitutional
Court of Colombia, available at http://contralauvr.com/buscador/consti/tutelas/T-415-
92.DOC.
364between the right to a generally satisfactory environment, guaranteed in
875
Article 24 of the African Charter, and the right to health .
9.81 With regard to the content of the right to a healthy environment, the
Commission ruled that the right:
“requires the State to take reasonable and other measures to
prevent pollution and ecological degradation, to promote
conservation, and to secure an ecologically sustainable
development and use of natural resources” 876.
According to the African Commission, realization of this right “entails
largely non-interventionist conduct from the State for example, not from
carrying out, sponsoring or tolerating any practice, policy or legal measures
violating the integrity of the individual” 877. Compliance with the right to a
healthy environment also includes obligations related to the right to
information and to taking other preventive measures; government
compliance must include:
“Ordering or at least permitting independent scientific
monitoring of threatened environments, requiring and
publicising environmental and social impact studies prior to
any major industrial development, undertaking appropriate
monitoring and providing information to those communities
exposed to hazardous materials and activities and providing
meaningful opportunities for individuals to be heard and to
participate in th878evelopment decisions affecting their
communities.”
875
Social and Economic Rights Action Centre and the Centre for Economic and Social
Rights v. Nigeria, ACHPR Comm. 155/96 (2002), para. 53.
876Ogoniland Case, para. 52.
877Ibid.
878
Ibid, para. 53.
3659.82 As established by the African Commission, protection of the right to
a healthy environment does not amount to restricting the State from taking
any action that impacts the environment. However, the State, in order to
protect human rights, must exercise due care, take necessary preventive
measures, allow informed participation of the concerned population, and
879
provide for adequate monitoring mechanisms .
9.83 None of these requirements have been met by Colombia in the
present case. The standards aimed at establishing to what extent the right to
a healthy environment of the concerned Ecuadorian population has been
affected are informed by the particular characteristics of the affected area,
including its social, economical and cultural environment. This Memorial
provides extensive evidence of the serious environmental impacts of
Colombia’s aerial sprayings over Ecuadorian territory; the toxic mixture
used in the aerial fumigations has polluted water, killed wild and domestic
animals, destroyed forest and decimated crops 88. These resources are
essential to sustaining the livelihood of farming and indigenous
communities in the border area. Moreover, as explained earlier in regard to
the right to property, the natural environment of this region constitutes the
home of indigenous communities. The environment is at the core of their
family life, of their property rights and of their cultural survival.
9.84 As stated by the Colombian Constitutional Court, the right to a
healthy environment has to be understood not only “as a fundamental right
of human beings, but also as one of the aims of the State, since not only the
879Ibid., para. 54.
880
See supra Chap. VI, Secs. II and III.
366integral development of the human species, but also the protection of the
881
most basic conditions of survival depend on its realization.” Colombian
aerial sprayings over Ecuadorian territory have destroyed peoples’ “most
basic conditions of survival” and have resulted in a violation by Colombia
of the right to a healthy environment as set out in the 1988 Additional
Protocol to the American Convention on Human Rights. Colombia’s failure
to take preventive measures, including mechanisms to facilitate access to
information and participation, aggravates its international responsibility.
F. THE RIGHT TO P ROPERTY
9.85 The right to property is set out in Article 17 of the Universal
Declaration of Human Rights of 1948. It is specifically guaranteed under
Article 21 of the American Convention on Human Rights. This provision
recognises that the right to the use and enjoyment of property may be
limited, but only according to a legal mandate; a person may only be
deprived of his or her property for reasons of “public utility or social
882
interest, and in the cases and according to the forms established by law” .
The Inter-American Court of Human Rights has defined “property” as
including “those material things which can be possessed, as well as any
right which may be part of a person’s patrimony; that concept includes all
movables and immovables, corporeal and incorporeal elements and any
other intangible object capable of having value” 883.
881 Fundepúblico v. Mayor of Bugalagrande and Others, para. 6 , available at ,
http://contralauvr.com/buscador/consti/tutelas/T-415-92.DOC.
882
American Convention on Human Rights, op. cit., Article 21(1) reads: “Everyone has the
right to the use and enjoyment of his property. The law may subordinate such use and
enjoyment to the interest of society.”
88Awas Tingni Case, para. 144.
3679.86 Most people living in the border area with Colombia own little more
than a small plot of land, the crops they cultivate and the few animals they
raise. Some of these families have incurred debts in order to make the
necessary investments in their land. The loss of crops and animals
occasioned by Colombia’s aerial spraying of herbicides has brought
irreparable harm to many families, especially to those located closer to the
border. Over a period of nearly nine years, in many cases, the soil has not
recovered and the productivity of farms has decreased significantly. The
damage to property has had a significant impact on the income generated by
already poor local farms, causing farmers to incur new or additional debt to
sustain their farms and families. In addition, the lack of income has made
farmers unable to repay existing loans thereby restricting local finance
884
bodies in their ability to make new loans to the local people . With no
loans, for many of the local farmers it has been impossible to start farming
again.
9.87 Chapter VI of the Memorial describes the impact of the aerial
spraying of herbicides over crops and animals. Subsistence crops have been
destroyed or damaged 885, and domestic animals have died 88. As a result,
many families have lost a great deal of their property or livelihood, and
887
many have been forced to move to other areas . These acts give rise to a
violation by Colombia of the obligation to respect the right to property.
884
See CONAIE Report, op. cit., p. 22. EM. Vol. IV, Annex 162.
885See supra Chap. VI, Sec. II.
886
See supra Chap. VI, Sec. III.
887See, e.g., supra, Chap. VI, paras. 6.37, 6.64, 6.74, 6.75, 6.95, 6.109, 6.116 and 6.119.
368 G. THE R IGHT TO H UMANE TREATMENT
9.88 Article 5 of the American Convention on Human Rights recognises
that “every person has the right to have his physical, mental and moral
integrity respected. No one shall be subjected to torture or to cruel,
inhuman or degrading punishment or treatment”.
9.89 In the present case, the right to psychological integrity of the
Ecuadorian population in the border region has been violated because
people have been subject to severe emotional distress caused by the direct
impacts of Colombia’s aerial fumigations on their lives 88. As explained
above, illnesses and other harms to health and livelihood that have occurred
following contact with the chemical products used in the sprayings have had
889
a severe psychological impact on the population . The accounts of fear
and trauma as a result of the fumigations are deeply troubling. A mother
who lost two small babies after the sprayings said:
“Because of all of this, every time I would see the planes
spraying around here for all these years, it would cause me
great anguish. I was afraid to have more child890 and lose
them to that poison that came out of the sky.”
9.90 Another mother, of the Cofán community of Avie, explained:
“I would not let my children go outside nor did I send them
anywhere; I was afraid they would get sick because I had
888
As affirmed by the Inter-American Court, “the violation of the right to physical and
psychological integrity of persons is a category of violation that has several gradations and
embraces treatment ranging from torture to other types of humiliating effects caused by
endogenous and exogenous factors…”. Loayza Tamayo v. Perú, Judgment , IACHR (17
Sep. 1997), para. 57.
889
See supra Chap. VI, paras. 6.18-6.19, 6.28, 6.35, 6.109, and 6.119.
890Witness 11 Declaration, op. cit. EM, Vol. IV, Annex 199.
369 already seen them sick after the sprayings. My health is 891
affected, I feel sick, I have headaches, and I live in fear.”
9.91 A young man from Avie, who at the time of the sprayings was a
child, left his Cofán community to study in Quito in order to recover from
the disruptions caused by the sprayings:
“When the sprayings began, I stopped going to school for
fear of the planes and helicopters. I spent a whole year out of
school.” 892
9.92 The UN Special Rapporteur on the Right to Health has
acknowledged the devastating impacts on mental health that have been
caused by Colombia’s aerial spraying:
“There is also credible, reliable evidence that the aerial
spraying damages their mental health. Military helicopters
sometimes accompany the aerial spraying and the entire
experience can be terrifying, especially for children. (Some
children told me that, while they were in their school, it was
sprayed).” 893
9.93 In addition to protection from fear, the right to humane treatment, as
recognised in Article 5 of the American Convention, requires protection
from other sources of distress. In the Moiwana Case, the Inter-American
Court of Human Rights addressed the situation of indigenous peoples and
the fragile balance in which they live their lives, and recognised a clear
violation of Article 5(1) of the Convention as a result of the N’djuka
891Witness 26 Declaration, op. cit. EM, Vol. IV, Annex 210.
892
Witness 29 Declaration, op. cit. EM, Vol. IV, Annex 213.
893Special Rapporteur on the Right to Health, 2007 Press Releaop. cit. EM, Vol. IV,
Annex 186.
370community being deprived of the right to continue to live in their traditional
lands:
“The proven facts demonstrate that a N’djuka community’s
connection to its traditional land is of vital spiritual, cultural
and material importance…Unable to practice their customary
means of subsistence and livelihood, many, if not all, have
suffered poverty and deprivation since their flight from
Moiwana Village…Taking into account the foregoing
analysis, the Court concludes that the Moiwana community
members have endured significant emotional, psychological,
spiritual and economic hardship – suffering to a such a
degree as to result in the State’s violation of Article 5(1) of
the American Convention, in relation to Article 1(1) of that
894
treaty, to the detriment of said community members.”
9.94 In these circumstances, Colombia’s actions give rise to its
responsibility for violating the right to humane treatment reflected in Article
5 of the Convention.
H. THE RIGHT TO PRIVATE LIFE
9.95 The spraying of toxic chemicals on the border area has severely
disrupted the lives of local communities over many years, to the point that
their lives have been transformed. These sprayings have interfered with
their most intimate aspects of life, affecting their choices and the way they
lead their daily existence. In many cases the sprayings have resulted in the
destruction of their means of subsistence and poor health, and this has
caused families to abandon their homes, as shown in Chapter VI 895.
894The Moiwana Community Case, paras. 101-103.
895
See supra Chap. VI, paras. 6.37, 6.64, 6.74, 6.75, 6.95, 6.109, 6.116 and 6.119.
3719.96 The right to private and family life is guaranteed by Article 17 of the
International Covenant on Civil and Political Rights (ICCPR), which states
that “no one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home or correspondence, nor to unlawful attacks on his
honour and reputation”. Similar obligations are reflected in Article 11 of
the American Convention on Human Rights and Article 16 of the
Convention on the Rights of the Child. This right is often engaged in
conjunction with the obligation to protect the family, as established in
896
Article 23 of the ICCPR and Article 17 of the American Convention , and
with Article 19 of the American Convention, which protects the rights of the
child. In this case, the right to private life, home and family life is closely
connected with the freedom of movement and residence, as guaranteed by
Article 17 of the ICCPR and Article 22 of the American Convention. The
Human Rights Committee, in Lovelace v. Canada , also recognised the
linkage between the right to private life and Article 27 on the rights of
897
minorities, which has been addressed above .
9.97 The right to private life involves the right to be free from arbitrary or
unlawful interference with one’s home and family life. According to the
UN Committee on Civil and Political Rights, both terms are to be
interpreted broadly; “family” needs include “all those comprising the family
as understood in the society of the State party concerned”, and the term
896The right to protection of families is also recognized in Article 15 of the Protocol of San
Salvador.
897
See supra Chap. IX, paras. 9.18-9.23.
372“home”, as used in Article 17 of the Covenant, is understood to indicate “the
place where a person resides or carries out his usual occupation” 898.
9.98 Freedom from arbitrary or unlawful interference includes having
one’s home and family life free from significant pollution. The European
Court of Human Rights was the first to confirm the point, in two cases
where citizens were affected by smells, fumes and noise from a waste
treatment plant and by hazardous substances from a chemical plant
899
respectively . The European Court found that in both cases there had
been a violation of the right to respect for private and family life. It stated:
“Severe environmental pollution may affect individuals’ well-being and
prevent them from enjoying their homes in such a way as to affect their
900
private and family life adversely.”
9.99 In the present case, unknowing and unprepared, local communities
were periodically exposed to herbicides. As a result, farmers and
901
indigenous peoples have frequently found it difficult to work their fields ,
898
CCPR, General Comment No. 16, The Right to Respect of Privacy, Family, Home and
Correspondence, and Protection of Honour and Reputation (Article 17), Thirty-second
session (1988), para. 5.
899
López Ostra v. Spain , Judgment, ECHR, Series A no. 303-C (9 Dec. 1994), pp. 54-55,
para. 51; Guerra and Others v. Italy , Judgment, ECHR, Reports of Judgments and
Decisions 1998 I (19 Feb. 1998), p. 228, para. 60. See also Fadeyeva v. Russia [2005]
ECHR 376; Öneryildiz v. Turkey [2004] ECHR 657.
900
López Ostra v. Spain , Judgment, ECHR, Series A no. 303-C (9 Dec. 1994), pp. 54-55,
para. 51.
901
See supra Chap. VI, Sec. II; see also e.g., Declaration of Witness 7, 16 Jan. 2009
(hereinafter “Witness 7 Declaration”). EM, Vol. IV, Annex 195; Witness 1 Declaration,
op. cit. EM, Vol. IV, Annex 189; Declaration of Witness 19, 17 Jan. 2009. EM, Vol. IV,
Annex 205.
373to make use of the river 902, to send their children to school 903, to lead their
daily lives undisturbed and to enjoy their home lives in a manner to which
they are entitled.
9.100 Many families have been displaced and forced to leave their homes
and relocate away from the border area in order to escape the harmful
effects of pollution from the chemical spray 904. In some cases, families have
been torn apart in the search for some alternative means to earn a living 905.
For example, Witness 26, from the Cofán community of Avie, explains:
“After the sprayings, my children had to leave to find work;
some work in Coca, in the province of Orellana, others in
Lago Agrio and others in General Farfán. The family has
separated, now I live with only one daughter. All this
displacement, which has been caused by the sprayings, has
very much affected our community, we used to live near the
border in the land of the Cofán, but we left there, moving
away from the border and our community, fleeing from the
sprayings. But this displacement has affected our traditions,
it is very important for the Cofán people to keep their roots,
the tradition of the Cofán people is to marry people from the
same Cofán nationality. But after the families leave the
communities, the young people turn away from the traditions.
They no longer marry members of the Cofán nationality and
902See, e.g., Witness 10 Declaration, op. cit. EM, Vol. IV, Annex 198; Declaration of
Witness 34, 19 Feb. 2009, para. 3. EM, Vol. IV, Annex 218; Witness 2 Declaration”). EM,
Vol. IV, Annex 190.
903See CONAIE Report, op. cit., p. 12. EM, Vol. IV, Annex 162; see also e.g., Witness 29
Declaration, op. cit. EM, Vol. IV, Annex 213; Declaration of Witness 13, 15 Jan. 2009
(hereinafter “Witness 13 Declaration”). EM, Vol. IV, Annex 201.
904See, e.g., Chap. VI, paras. 6.37, 6.64, 6.74, 6.75, 6.95, 6.109, 6.116 and 6.119.; see also
e.g., Witness 32 Declaration, op. cit. , para. 4. EM, Vol. IV, Annex 216; Witness 27
Declaration, op. cit. EM, Vol. IV, Annex 211; Witness 29 Declaration, op. cit. EM,Vol.
IV, Annex 213.
905See, e.g., Witness 19 Declaration, op. cit. EM, Vol. IV, Annex 205; Witness 20
Declaration, op. cit., para. 6. EM, Vol. IV, Annex 206; Witness 28 Declaration, op. cit.
EM, Vol. IV, Annex 212.
374 they do not return to the communities, they remain in the
vill906. This separation has been very difficult for all of
us.”
9.101 In the case of indigenous communities, as explained in Chapter VI,
and exemplified in the statement of Witness 26, above, the abandonment of
ancestral lands has not only brought an end to the enjoyment of homes, it
has also led to the disintegration of families.
9.102 Displacement of families from their homes as a result of aerial
spraying of toxic herbicides engages the responsibility of Colombia for a
violation of the right to private life pursuant to applicable articles of the
ICCPR, the American Convention on Human Rights, and the Convention on
the Rights of the Child.
I. THE R IGHT TO INFORMATION
9.103 As described in this Memorial, Colombia has persistently failed to
provide adequate information concerning the aerial sprayings. Information
has been withheld on timings and locations, and on the chemical
composition of the materials that have been used in the sprayings. Even
now the Government of Ecuador and the local population in the affected
areas have not been informed about the specific composition of the
herbicide compound Colombia has used over time in the aerial sprayings,
906
Witness 26 Declaration, op. cit. EM, Vol. IV, Annex 210.
375the concentration of the chemicals within the mixture, or the location or
907
times of the spray campaigns .
9.104 Compliance with the obligations referred to in Chapter VIII, at
paragraphs 8.63-8.70, requires Colombia to notify and inform those likely to
be affected by the aerial sprayings; see, for example, Öneryildiz v Turkey,
where the European Court of Human Rights placed “particular emphasis” on
the public’s right to information about dangerous activities which posed a
908
threat to life . In Taskin v. Turkey , the European Court explained that
where a State wishes to undertake activities which might damage the
environment and infringe individuals’ rights, it has to conduct appropriate
assessments of such consequences and ensure public access to such
assessments 909. The African Commission on Human and Peoples’ Rights
has adopted a similar approach. In the Ogoniland Case, it ruled that
compliance with the right to health and with the right to a healthy
environment required the State to provide “information to those
communities exposed to hazardous materials and activities and [to provide]
meaningful opportunities for individuals to be heard and to participate in the
910
development decisions affecting their communities” .
9.105 The Inter-American system for the protection of human rights has
long recognised that the failure to engage in “meaningful consultation” with
indigenous communities in connection with activities affecting their
traditional lands will result in a violation of various human rights
907
See generally Chap. III.
908Case of Öneryildiz v. Turkey, Judgment, ECHR (30 Nov. 2004), para. 90.
909
Case of Taskin and Others v. Turkey, Judgment, ECHR (10 Nov. 2004), para. 119.
910Ogoniland Case, para. 53.
376 911
obligations . As already pointed out in paragraphs 9.21 and 9.29 above,
Article 27 of the International Covenant on Civil and Political Rights and
Article 6 of ILO Convention No 169 also require consultation with
indigenous peoples and participation in decision-making.
9.106 A great number of statements from inhabitants in the border area
confirm the absence of any consultation with local inhabitants about
912
Colombia’s herbicide spraying programme . Colombia’s failure to
provide even the minimum information left the population in the border area
entirely uninformed as to the composition or effects of the chemical mixture
being sprayed, the times of the sprayings or the areas where spraying would
take place. This total lack of the most basic information has been
913
underscored by the UN Special Rapporteur on the Right to Food .
9.107 Colombia’s failure to provide minimum information about the
serious risks of toxic herbicides to health, water supplies, crops and
domestic animals, or to warn those likely to be affected when spraying was
due to take place, amounts to a grave breach of the right to life and the right
to private and family life, and to applicable articles of the International
Covenant on Civil and Political Rights and ILO Convention No 169.
911
Maya Indigenous Communities of the Toledo District v. Belize , Judgment, Inter-
American Commission on Human Rights, Report Nº 40/04, Case 12.053 (12 Oct. 2004),
para. 154.
912See all witness statements in Annexes 187-233, in which none of the witnesses were
given notice and all were found outside, exposed to the chemical spray during fumigation
events.
913See Special Rapporteur on the Right to Food, Communications, op. cit., para. 17. EM,
Vol. II, Annex 33.
377 J. C ONCLUSIONS
9.108 This chapter has shown that Colombia’s programme of aerial
spraying of toxic herbicides in border areas has seriously affected the health
of local inhabitants in Ecuadorian territory, has diminished the productivity
of their farms, crops, and domestic animals, has polluted their water supplies
and the natural environment, and in some cases has resulted in the
displacement of villages and other habitations near the border. Colombia’s
failure to take the measures necessary to prevent or mitigate the harmful
effects of the toxic herbicides it has chosen to use amounts to a failure to
protect the human rights of all the affected populations, as well as the
special rights of indigenous peoples. This failure constitutes a violation
inter alia of the rights to life, health, private and family life, property, and
for indigenous peoples, of their rights to pursue their traditional lifestyles
and culture and to use and enjoy their ancestral lands and natural resources.
9.109 Colombia has thus violated applicable provisions of inter alia the
1966 UN Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights, the 1969 Inter-American Convention on Human Rights,
the 1979 Convention on the Elimination of All Forms of Discrimination
Against Women, the 1988 Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights, the
1989 ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries, and the 1989 Convention on the Rights of the Child.
Moreover, for the same reasons and on the same basis it has also violated
the 1988 UN Narcotic Drugs Convention, insofar as human rights
obligations are incorporated thereunder by virtue of Article 14(2).
3789.110 Ecuador reserves its right to seek appropriate remedies for these
violations, as set out in Chapter X of this Memorial.
379 CHAPTER X.
COLOMBIA IS INTERNATIONALLY RESPONSIBLE FOR ITS
VIOLATIONS OF INTERNATIONAL LAW10.1 This Chapter sets out the principles governing the responsibility and
liability of Colombia for the multiple violations of international law that have
been occasioned by Colombia’s aerial spraying programme since 2000.
10.2 Colombia’s actions have caused grave, continuing and long-lasting harms
to Ecuador: to its sovereignty, to its people and property, including indigenous
peoples, and to its environment. As set out further below, in respect of past
actions, Ecuador seeks a declaration from the Court that Colombia’s actions have
violated numerous of its international legal obligations. It also seeks, in respect
of the future, an order from the Court that Colombia cease and desist from any
further illegal actions and, in light of the continuing unlawful consequences of its
actions, that it be ordered not to repeat any of its past actions. But a declaration
of illegality and an order of non-repetition will not be sufficient to redress the
harms that have been suffered. It is well established that an illegal act gives rise
to an obligation to make reparation and that, as the PCIJ made clear in the
Factory at Chorzów case, “reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which would, in all
probability, have existed if that act had not been committed” 91. In the present
case some of the harm that has been caused -- to the rights of indigenous peoples,
to the environment, to the well-being of Ecuador’s citizens -- may not be
susceptible to restitution. In these circumstances, in accordance with well-
established principles of international law, other forms of reparation are available
and should be ordered.
10.3 At this stage of the proceedings, Ecuador requests the Court to do no more
than determine that Colombia is internationally responsible for its violations of
914See infra para. 10.16.
382international law, and to declare the applicable principles that govern Colombia’s
liability, including the legal consequences and liability of Colombia for its
unlawful actions. This is an approach that the Court has taken on other
occasions. In the case concerning Armed Activities on the Territory of the Congo
the Court stated that it:
“considers appropriate the request of the DRC for the nature, form
and amount of the reparation due to it to be determined by the
Court, failing agreement between the Parties, in a subsequent
phase of the proceedings” 915.
10.4 The Court recognized that this would give the Applicant State “the
opportunity to demonstrate and prove the exact injury that was suffered as a result
of specific actions of [the Respondent State] constituting internationally wrongful
916
acts for which it is responsible” . Adopting this approach, Ecuador does not
propose at this stage of the proceedings to “demonstrate and prove the exact
injury that was suffered” as a result of specific actions of Colombia; Ecuador is
evaluating all the damages that have been suffered and will tender specific and
complete evidence on all the harms, together with a detailed claim for monetary
compensation, in the next phase of these proceedings. At this stage, Ecuador
limits itself to identifying the applicable heads under which injury has been
suffered and for which reparation and other consequences may arise, together
with an indication of the relevant and existing evidence on assessment of
damages that will be elaborated in a future phase.
10.5 In this regard, Ecuador notes that in the case concerning Armed Activities
on the Territory of the Congo the Court reminded the parties that:
915Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda),
Judgment, I.C.J. Reports 2005, p. 201, para. 260.
916
Ibid.
383 “It goes without saying, however, as the Court has had the
opportunity to state in the past, ‘that in the phase of the
proceedings devoted to reparation, neither Party may call in
question such findings in the present Judgment as have become res
judicata’ ( Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. United States of America), Merits,
917
Judgment, I.C.J. Reports 1986, p. 143, para. 284).”
10.6 The International Law Commission’s Articles on Responsibility of States
for Internationally Wrongful Acts (“ILC Draft Articles on State Responsibility”)
provide, in Article 1 that:
“Every internationally wrongful act of a State entails the
918
international responsibility of that State.”
10.7 This principle, which reflects a rule of general international law, governs
the international responsibility of Colombia. By violating its international
obligations towards Ecuador in the manner set out in the preceding Chapters,
Colombia has committed internationally wrongful acts 919giving rise to
responsibility under international law. Colombia has caused or allowed the
deposit on the territory of Ecuador of toxic chemicals that have caused damage to
human health, to property and to the environment.
917
Ibid.
918 International Law Commission, Articles on Responsibility of States for Internationally
Wrongful Acts, Yearbook of the International Law Commission, with Commentaries , (hereinafter
“ILC Draft Articles on State Responsibility”), Vol. II, Part Two (2001).
919Article 2 of the ILC Draft Articles on State Responsibility states that there is an internationally
wrongful act of a State when conduct consisting of an act or omission: (a) is attributable to the
State under international law; and (b) constitutes a breach of an international obligation of the
State. Ibid.
38410.8 The ILC Draft Articles on State Responsibility set out the legal
consequences of an internationally wrongful act of a State. These include a duty
to:
(a) cease the wrongful act, if it is continuing 920;
(b) offer appropriate assurances and guarantees of non-repetition, if the
circumstances so require 921; and
(c) make full reparation for the injury caused by the internationally
wrongful act, including any material or moral damage caused by that
act922.
These consequences need not be mutually exclusive.
Section I. The Harm Suffered by Ecuador
10.9 The harm suffered by Ecuador as a result of Colombia’s acts has been
described in the preceding chapters of this Memorial, in particular in Chapter VI.
Colombia’s chemical spraying has caused damage and injury to human health,
including illness and death among the people who inhabit the border region 923.
Individuals in Ecuador in the affected region have suffered skin irritation and
rashes, eye irritation, fever, nausea, vomiting, dizziness, headaches and
respiratory complications in the aftermath of the spraying 924. The medium and
long term health effects of their exposure to the herbicide mixture remain
uncertain. In addition to direct exposure to chemical spraying, the health of
920Ibid., Art. 30.
921Ibid.
922
Ibid., Art. 31. The Draft Articles go on to address reparation for injury in more detail in
Articles 34 -39.
923
See supra Chap. VI, Sec. I. “The Harm to People”.
924See ibid.
385people in the border region has been adversely affected by pollution of freshwater
supplies used for drinking, cooking and bathing. The health of animals, including
livestock, poultry and fish, has also been badly affected, resulting in deaths,
serious ailments and reduced productivity 925. Colombia’s aerial spraying of
herbicides has destroyed or damaged thousands of hectares of valuable crops in
Ecuador 926, with particularly devastating effects on short-cycle crops and the
subsistence crops upon which indigenous and local communities in Ecuador’s
border region depend 927. All of these impacts have had serious effects on the
well-being, food security and human rights of the indigenous and local
communities in the border region, and have resulted in the displacement of some
communities as they seek to escape the effects of the spraying 928. The full impact
of the spraying in the short, medium and long-term on the wider environment, in
what is a megadiverse region, remains unknown, but damage to local wildlife,
forests and water resources has been established 929.
Section II. Cessation and Non-Repetition
10.10 The Commentary to the ILC Draft Articles on State Responsibility
explains that:
925
See supra Chap. VI, Sec. III. “The Harm to Animals”.
926See supra Chap. VI. Sec. II. “The Harm to Plants”.
927Ibid., especially paras. 6.55-6.60.
928
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental
Freedoms of Indigenous People, Mission to Ecuador (25 April-4 May 2006), (hereinafter “Report
of the Special Rapporteur on the Rights of Indigenous People”) U.N. Doc. A/HRC/4/32/Add.2 (28
Dec. 2006), para. 30. EM, Vol. II, Annex 30.
929
Ibid. See also supra , Chap. VI, Sec. II. “The Harm to Plants”, Sec. III. “The Harm to
Animals”, paras. 6.86-6.87, 6.91, 6.96, 6.104, 6.107, 6.117, 6.120-6.125; Chap. IX, paras. 9.70-
9.74.
386 “Cessation is, as it were, the negative aspect of future
performance, concerned with securing an end to continuing
wrongful conduct, whereas assurances and guarantees serve a
preventive function and may be described as positive
930
reinforcement of future performance.”
10.11 Colombia commenced aerial spraying of an herbicide-based mixture in
the border region with Ecuador in 2000, and continued, despite Ecuador’s
protests, until early 2007. Since then, Colombia has held out the possibility that it
may resume spraying at any time. The diplomatic history of this dispute, as
described in Chapter III, shows conclusively that Colombia failed to take into
account Ecuador’s serious concerns, and in particular that it failed to provide
information as to the chemical composition of the materials being sprayed. This
failure to provide information constitutes an ongoing and continuing violation of
its obligations, since the failure to provide information makes it impossible to
know precisely what measures are needed to safeguard the health of those persons
who have been exposed to the spray, as well as the impact on crops, livestock and
the environment. This continuing violation alone justifies an order for cessation
of the refusal to provide information.
10.12 As described in Chapters II, III and V, Colombia has consistently refused
to disclose to Ecuador the precise chemical composition of the herbicide mixture
that it is spraying and the concentrations of the various chemicals used 931. It has
also refused to provide information as to the time and location of the aerial
sprayings. This is in plain violation of Colombia’s obligation under international
law to consult and cooperate with Ecuador in order to prevent transboundary
930ILC Draft Articles on State Responsibility, op. cit., Art. 30, Commentary para. 1.
931See, e.g., supra, Chap. II, paras. 2.38-2.43; Chap. III, paras. 3.2, 3.9-3.10, 3.68, 3.78; Chap. V,
paras. 5.27–5.34.
387 932
harm . It severely hampers the ability of Ecuador to formulate and implement
effective responses to avoid or alleviate the damage caused to its people,
property, and environment. It means that Ecuador has not in the past been able to
provide the fullest possible care for those who have been exposed to the
contaminants. And as to the future, it means that Ecuador continues to be unable
to care for the victims of contamination as well as it should be able to.
Accordingly, Ecuador seeks an order from the Court that Colombia should fulfil
its international obligation by disclosing to Ecuador the composition of the
herbicide mixture(s) used in the border region from 2000 onwards.
10.13 In the period since 2000, Colombia repeatedly violated the territorial
sovereignty of Ecuador, and violated its international obligations in the manner
described in the preceding Chapters of this Memorial. Moreover, despite
repeated requests from Ecuador, Colombia has declined to give Ecuador any
undertaking that it will refrain in the future to engage in spraying that may have
cross-border effects 933. Given Colombia’s failure to consult or cooperate with
Ecuador in relation to this matter since the commencement of spraying in 2000,
the situation appears to be that Colombia could engage in renewed aerial
herbicide spraying at any time and without prior or other notice or information to
Ecuador, and without Ecuador having been afforded an opportunity to give its
consent. Any recommencement would expose the population, territory and
environment of Ecuador to continuing and additional harm. As set out in this
Memorial, the adverse effects of Colombia’s herbicide sprayings on Ecuador
have already been severe and persistent, and threaten irreversible
932See supra Chap. VIII, Secs. II & III.
933
See, e.g., supra, Chap. III, paras. 3.14-3.15, 3.24-3.26, 3.54, 3.59.
388consequences 934. Colombia is under an obligation to cease using the herbicides in
such a way that they could be deposited into the territory of Ecuador, and to
provide to Ecuador guarantees of non-repetition of the illegal acts described in
this Memorial. Ecuador seeks an order from the Court to this effect. To the
extent that aerial herbicide spraying continues, the damage to the territory,
population and environment of Ecuador described in Chapter VI will continue.
Accordingly, Ecuador seeks an order from the Court that Colombia should fulfil
its international obligation to Ecuador by refraining from further aerial spraying
activities that deposit herbicides at, near or across the border with Ecuador.
Section III. Reparation
10.14 The general principle of reparation was set out by the Permanent Court of
International Justice in the Factory at Chorzów case as follows:
“It is a principle of international law that the breach of an
engagement involves an obligation to make reparation in adequate
935
form.”
10.15 The arbitral tribunal in Rainbow Warrior confirmed that:
“Any violation by a State of any obligation, of whatever origin,
gives rise to state responsibility, and consequently, to the duty of
reparation.” 936
934
See supra Chap. VI.
935Factory at Chorzów, Jurisdiction, Judgment, 1927, P.C.I.J. Series A, No. 9, p. 21.
936
Case concerning the difference between New Zealand and France concerning the
implementation or application of two agreements concluded on 9 July 1986 between the two
States and which related to the problems arising from theRainbow Warrior Affair, Reports of
International Arbitral Awards, Vol. XX (1990), p. 215, para. 75.
38910.16 As to the form of reparation, the Permanent Court stated in Factory at
Chorzów:
“The essential principle contained in the actual notion of an illegal
act -- a principle which seems to be established by international
practice and in particular by the decisions of arbitral tribunals -- is
that reparation must, as far as possible, wipe out all the
consequences of the illegal act and reestablish the situation which
would, in all probability, have existed if that act had not been
committed. Restitution in kind, or, if this is not possible, payment
of a sum corresponding to the value which a restitution in kind
would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in
place of it -- such are the principles which should serve to
determine the amount of compensation due for an act contrary to
937
international law.”
This principle is firmly established in international law, and has been cited by the
Court in numerous cases 938.
10.17 Historically, the leading case involving transboundary harm has been the
Trail Smelter arbitration, where the Tribunal found that the smelter at Trail had
caused damage in the United States and was called upon to decide what
indemnity should be paid for the damage 939. The case is largely of historical
interest, applying the approach to compensation that pertained in the early part of
the twentieth century, which approach has been significantly developed in recent
years, as reflected, for example, in the decisions of the United Nations
Compensation Commission that are detailed below. Even if of historical interest,
937
Factory at Chorzów, Claim for Indemnity, Merits, Judgment No. 13, 1928, P.C.I.J. Series A,
No. 17, p. 47.
938E.g., Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) , Judgment,
I.C.J. Reports 1997, p. 7, p. 77, para. 149 anAvena and Other Mexican Nationals (Mexico v.
United Slates of America), Judgment, I.C.J. Reports 2004, p. 12, para. 119.
939See Trail Smelter Case (United States v. Canada), 16 Apr. 1938 and 11 Mar. 1941, Reports of
International Arbitral Awards, Vol. III, p. 1905.
390the Tribunal nevertheless went far in awarding damages for harm to cleared land
used for crops, adopting the measure of damages applied by the American courts
for nuisance or trespass, namely “the amount of reduction in the value of use or
rental value of the land caused by the fumigations” 940. The Tribunal also
recognised evidence of “special damage” which gave rise to a further award of
monetary damages 941, and awarded compensation for damage to cleared land not
used for crops and to all uncleared lands. The Tribunal held that it was
“unnecessary to decide whether the facts proven did or did not constitute an
infringement or violation of the sovereignty of the United States under
international law independently of the Convention” since the 1935 Convention
only submitted to the Tribunal the question of damages caused by the Trail
Smelter in the state of Washington, and it interpreted the intention of the parties
in the Convention not to include monies spent by the United States in
investigating the problems, since the agreement used the words “damage caused
by the Trail Smelter” 942. The two awards of the Arbitral Tribunal did not deal
with pure environmental damage per se, and did not assess damages in respect of
injurious consequences to the Colombia River.
10.18 The historical approach in the Trail Smelter case may be compared with
the modern approach reflected in decisions adopted by the United Nations
Compensation Commission (“UNCC”), including in particular the report on
awards of compensation for environmental and public health damage resulting
from Iraq's 1990-91 invasion and occupation of Kuwait that was issued in June
940Ibid., p. 1925.
941
Ibid.
942Ibid., pp. 1932-1933.
3912005 94. The UNCC was required to interpret and apply Security Council
Resolution 687 (1991), which provided that Iraq was “liable under international
law for any direct loss, damage, including environmental damage and the
depletion of natural resources, or injury to foreign Governments, nationals and
944
corporations, as a result of Iraq's unlawful invasion and occupation of Kuwait” .
The UNCC awarded compensation for the monitoring and assessment of damage,
945
for response costs, and for remediation of damage . Further claims were made
by Kuwait and neighbouring States for damage from oil well fires that released
airborne contaminants; for damage caused by oil lakes that migrated onto the
desert surface; for oil spills into the Persian Gulf; and for the impacts of these and
other acts on public health. The UNCC made large money damage awards to the
Governments of Kuwait, Iran, Jordan and Saudi Arabia for losses of natural
resources, losses of crops and livestock, loss of water resources, costs of
remediation, and damage to public health.
10.19 Significantly, the UNCC decided that pure environmental damage could
be compensable, and dealt at length with the issue of quantifying the level of
compensation. It decided that where a resource had commercial value, such as a
crop, and was damaged for a period of time, compensation should be awarded on
the basis of the market price for the period of time that the damage persisted,
943On the Commission generally, see Alexandros Kolliopoulos, La Commission d'indemnisation
des Nations Unies et le droit de la responsabilité internationale, Libraire Générale de Droit et de
Jurisprudence (2001). See more specifically: United Nations Compensation Commission
(UNCC), Report and Recommendations made by the Panel of Commissioners concerning the
Fifth Instalment of "F4" Claims , (hereinafter “Report on the Fifth Instalment of F4 Claims”)
S/AC.26/2005/10 (2005). EM, Vol. II, Annex 35.
944United Nations Security Council, Resolution 687 , 2981st Meeting, U.N. Doc. S/RES/687
(1991), para. 16.
945See, e.g. UNCC, Report and Recommendations made by the Panel of Commissioners
concerning the First Instalment of "F4" Claims, (hereinafter “Report on the First Instalment of F4
Claims”) U.N. Doc. S/AC.26/2001/16 (2001). EM, Vol. II, Annex 34.
392adjusted as appropriate to take into account the influence of other sources of
946
damage . As regards damage to resources which did not have a market
reference price, such as a loss of biodiversity that persisted for several years, the
UNCC Panel indicated that it would be willing to compensate natural resource
losses by reference to the costs of other environmental projects that were put in
place to compensate for the loss of ecological services that the natural resources
would have provided had they not been damaged, so long as there was “sufficient
evidence that primary restoration will not fully compensate for any identified
947
losses” . The Panel also made awards for public health claims, including
Kuwait's claim for costs of treating post-traumatic stress disorder; Iran’s claim for
costs of medical treatment and public health facilities made available to refugees;
and a study of cancer and haematological disorder in Iran. The Panel also stated
that as a matter of principle, a State could be compensated for the costs of
monitoring and medical screening to investigate and combat increased health
risks; for expenses actually incurred by a State in combating increased public
health problems or public health risks; and for general damage related to public
health, such as claims for loss of life or reduced quality of life, so long as the
losses resulted directly from Iraq’s invasion and occupation of Kuwait 948. The
Panel also found that States had standing to claim compensation for loss of well-
946UNCC, Report on the Fifth Instalment of F4 Claims, op. cit., paras. 103-118 (finding that
reduced crop yields in Iran are compensable). EM, Vol. II, Annex 35.
947
Ibid., para. 82. The claimants used a “Habitat Equivalency Analysis” to determine the amount
of compensation claimed, which involved assessing the nature and extent of the temporary loss of
ecological services from the damaged resources, determining the gain in ecological services
anticipated from the compensatory projects, and calculating the cost of the compensatory projects.
See ibid., paras. 81-82. The Panel made awards that were quantified according to the cost of
various compensatory projects: a cooperative rangeland management program to restore
rangeland and wildlife habitat damaged by the influx of refugees into Jordan; shoreline preserves
in Kuwait and Saudi Arabia; and damage to rangelands from the presence of refugees in Iran, on
the basis of the price of fodder rather than the value that Iran derived from lost ecological
services.
948Ibid., paras. 67-69.
393being suffered by their nationals due to post-traumatic stress disorder, although it
949
found that there was insufficient evidence to support awards in these instances .
10.20 At the next stage of the proceedings, in which issues of compensation are
fully addressed, Ecuador will introduce additional evidence to support its claims
in relation to damage to persons, to property and to the environment, including
clean up and restoration costs, and preventive measures to maximise the
protection of human health.
10.21 The ILC’s Draft Articles on State Responsibility make reference to the
Chorzów Factory principle, and identify restitution, compensation and
950
satisfaction either singly or in combination, as appropriate forms of reparation .
In the M/V ‘Saiga’ (No. 2) case, the International Tribunal for the Law of the Sea
observed that:
“Reparation may be in the form of ‘restitution in kind,
compensation, satisfaction and assurances and guarantees of non-
repetition, either singly or in combination’ (article 42, paragraph 1,
of the Draft Articles of the International Law Commission on State
Responsibility). Reparation may take the form of monetary
compensation for economically quantifiable damage as well as for
non-material damage, depending on the circumstances of the case.
The circumstances include such factors as the conduct of the State
which committed the wrongful act and the manner in which the
violation occurred. Reparation in the form of satisfaction may be
949
Ibid., para. 289 (no compensation recommended for this element of Iran's claim because
evidence was not sufficient to establish that there was an increase in the number of cases of PTSD
and panic disorder requiring treatment in Iran as a direct result of Iraq's invasion and occupation
of Kuwait) and para. 515 (no compensation for this element of Kuwait’s claim because evidence
was not sufficient to demonstrate the nature and extent of the damage).
950
ILC Draft Articles on State Responsibility, op. cit., Art. 34.
394 provided by a judicial declaration that there has been a violation of
a right.”951
10.22 The position has been fully set out by the Court in the Armed Activities on
the Territory of the Congo case:
“The Court observes that it is well established in general
international law that a State which bears responsibility for an
internationally wrongful act is under an obligation to make full
reparation for the injury caused by that act (see Factory at
Chorzów, Jurisdiction, 1927, P.C.I.J., Series A, No. 9 , p. 21;
Gab▯íkovo-Nagymaros Project (Hungary/Slovakia), Judgment,
I.C.J. Reports 1997, p. 81, para. 152; Avena and Other Mexican
Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004, p. 59, para. 119).” 952
10.23 The Court proceeded to examine the evidence. It identified, amongst
other violations, that Uganda was responsible for violation of the Democratic
Republic of Congo’s sovereignty and territorial integrity, and violations of
international human rights law and international humanitarian law. Having
established that those acts resulted in injury to the DRC and to persons on its
territory, and having satisfied itself that this injury was caused to the DRC by
Uganda, the Court ruled that “Uganda has an obligation to make reparation
953
accordingly” .
10.24 In the present case the conditions for reparation have also been fully
satisfied, so that Colombia is under a duty to make full reparation to Ecuador for
951 M/V “Saiga” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea) , Judgment,
International Tribunal for the Law of the Sea (1999), para. 171.
952
Armed Activities on the Territory of the Congo, I.C.J. Reports 2005, p. 201, para. 259.
953Ibid.
395the injury suffered as a result of Colombia’s internationally wrongful acts.
Specifically:
(a) Colombia by its acts is responsible for violations of international
obligations owed to Ecuador;
(b) those acts have caused injury to Ecuador; and
(c) the injury to Ecuador has been caused by Colombia.
10.25 It follows that reparation is due. Insofar as damage cannot be or is not
made good by restitution, international law requires the payment of
compensation. As set out below, Ecuador submits that, in respect of damage to
human, animal and plant health and damage to the environment caused by
herbicides, reparation should take the form of monetary compensation. This
approach is consistent with the principles set forth in decisions taken by the
UNCC Panel in its Fifth Report, as described above 95.
Section IV. Compensation
10.26 The Court has confirmed that:
“It is a well-established rule of international law that an injured
State is entitled to obtain compensation from the State which has
committed an internationally wrongful act for the damage caused
by it.”955
10.27 In the Corfu Channel case, the Court found that Albania was under a duty
to pay compensation to the United Kingdom for damage suffered as a result of
954See supra paras. 10.18 - 10.19.
955Gabcikovo-Nagymaros Project (Hungary v. Slovakia) , Judgment, I.C.J. Reports 1997 , p. 7,
para. 152.
396the mines in its territorial waters, and that it had jurisdiction to determine the
amount of compensation 956. The International Law Commission observed that:
“It is equally well established that an international court or tribunal
which has jurisdiction with respect to a claim of State
responsibility has, as an aspect of that jurisdic957n, the power to
award compensation for damage suffered.”
Article 36 of the ILC Draft Articles on State Responsibility addresses the
obligation to compensate insofar as damage is not made good by restitution.
Article 36(2) provides that “[t]he compensation shall cover any financially
958
assessable damage” , and the Commentary provides that the qualification
“financially assessable” is “intended to exclude compensation for what is
959
sometimes referred to as ‘moral damage’” . The damages for which Ecuador
seeks monetary compensation are “financially assessable”, as made clear by the
UNCC Panel in its Fifth Report, as described above.
960
10.28 Under Article XXXI of the Pact of Bogotá , Colombia and Ecuador
recognise the jurisdiction of the Court in all disputes of a juridical nature that
arise between them concerning, inter alia, the nature and extent of the reparation
to be made for the breach of an international obligation.
956
Corfu Channel (United Kingdom v. Albania), Judgment, Merits, I.C.J. Reports 1949, p. 4, p.26;
Corfu Channel (United Kingdom v. Albania) , Judgment, Assessment of the Amount of
Compensation due from the People’s Republic of Albania to the United Kingdom of Great Britain
and Northern Ireland, I.C.J. Reports 1949, p. 244.
957
ILC Draft Articles on State Responsibility, op. cit., Art. 36, Commentary para. 2.
958Ibid., Art. 36.
959Ibid., Art. 36, Commentary para. 1.
960
American Treaty on Pacific Settlement, “Pact of Bogotá” (hereinafter “Pact of Bogotá”) 30
UNTS 55 (30 Apr. 1948). EM, Vol. II, Annex 1.
39710.29 In the present case, Colombia is under an obligation to indemnify Ecuador
for any loss or damage caused by its internationally wrongful acts, including in
particular for the following:
(a) death or injury to the health of any person or persons;
(b) any loss of or damage to the property or livelihood or human
rights of such persons;
(c) environmental damage or the depletion of natural resources;
(d) the costs of monitoring to identify and assess future risks to public
health, human rights and the environment; and
(e) any other loss or damage.
Ecuador claims in relation to each of these headings.
A. ECUADOR C LAIMS C OMPENSATION FOR DEATH OR INJURY TO THE H EALTH
OF A NY PERSON OR PERSONS
10.30 Colombia’s acts have caused extensive and long-lasting damage to the
health and well-being of local communities and indigenous people in the border
region of Ecuador affected by the aerial herbicide spraying1. Common effects
include serious skin rashes, fever, diarrhea, vomiting, abdominal pain, dry
coughs, conjunctivitis, tearing, blurred vision, and dizzinessThere have been
deaths of numerous young children connected to the spraying episodes 963. The
effects of the herbicides on human health in Ecuador have been confirmed by the
UN Special Rapporteur on the Right to Health, who recorded the preliminary
view in 2007 that “there was credible and reliable evidence that the aerial
96See supra Chap. VI, Sections I and IV.
962
See supra Chap. VI, Sec. I. “The Harm to People”; see especially, paras. 6.9-6.17.
96See supra Chap. VI, paras. 6.50, 6.129-130.
398spraying of glyphosate along the border damages the physical and mental health
of people living in Ecuador” 964.
10.31 The Court awarded damages in respect of the death of and injury to
persons in the Corfu Channel case 965. The United Kingdom claimed, in respect
of loss of and injury to naval personnel, compensation relating to the costs of
pensions and grants to victims and dependents, costs of administration and
medical treatment.
10.32 In the M/V ‘Saiga’ (No. 2) case, compensation awarded by the
International Tribunal for the Law of the Sea included amounts in respect of
medical expenses, injury, pain, suffering and psychological damage of certain
966
crew members of the detained vessel . These claims were based on the
approach taken by various international human rights courts on the assessment of
967
damages .
10.33 In the context of claims concerning public health, including claims for
loss of life or reduced quality of life, a UNCC panel observed that “general
international law recognizes the right of a State to bring a claim on the
international plane against another State for damage to a national of the claimant
964
Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest
Attainable Standard of Physical and Mental Health, Preliminary Note on the Mission to Ecuador
and Colombia, (hereinafter “Special Rapporteur on the Right to Health, Preliminary Note”) U.N.
Doc. A/HRC/7/11/Add.3 (4 Mar. 2007), para. 17. EM, Vol. II, Annex 31.
965Corfu Channel, Assessment of the Amount of Compensation due from the People’s Republic of
Albania to the United Kingdom of Great Britain and Northern Ireland, I.C.J. Reports 1949 , pp.
249-250.
966M/V “Saiga” (No. 2) Case, International Tribunal for the Law of the Sea, 1999, para. 175.
967Ibid., paras. 167- 177.
399 968
State” . This was the case even where, as in the UNCC, the injured national
had the right to bring an individual claim, provided that there was no duplication
in compensation awarded.
10.34 In the present case, Ecuador submits that it is entitled to compensation in
respect of the loss of life and damage to the health of its nationals caused by the
herbicide spraying. In addition, it is entitled to recover from Colombia the costs
of medical investigations and treatment necessitated by the adverse effects of the
spraying on the health of the people of Ecuador. These placed a significant
burden upon the already limited and strained medical facilities available in the
border region. Further, as set out under heading (D) below, given the potential
long-term and delayed effects of chemicals upon human health, Ecuador is
entitled to compensation in respect of the costs of targeted monitoring of public
health in order to identify and address any delayed or long-term effects of
exposure to the herbicides.
B. ECUADOR CLAIMS COMPENSATION FOR LOSS OF ORD AMAGE TO THE
PROPERTY OR LIVELIHOOD OR H UMAN R IGHTS OFSUCH PERSONS
10.35 Colombia’s aerial spraying programme has damaged property of local and
indigenous communities in the border region, and adversely affected their
livelihoods. In particular, the chemicals caused significant harm to crops,
including subsistence crops upon which local and indigenous communities
96UNCC, Report on the Fifth Instalment of F4 Claims, op. cit., paras. 69-70. EM, Vol. II, Annex
35.
400depend for their survival, as well as to domestic animals, including livestock,
969
poultry and fish .
10.36 Colombia’s aerial spraying of a toxic mixture containing glyphosate
caused substantial damage to crops in Ecuador, resulting in reduced yields or
970
even the disappearance of some varieties . These impacts have been described
in Chapter VI. Numerous crops were affected, including maize, coffee, plantain
and yucca. The crop damage has had a significant adverse impact on the
livelihoods and food security of the local people, some of whom have been
displaced as a result. The health and productivity of domestic animals have also
been badly affected, including fish, chickens, pigs, dogs and cattle. Many
animals have died as a result of the spraying, with fish being particularly
susceptible 971.
10.37 Ecuador submits that it is entitled to full compensation in respect of this
loss of or damage to property, including crops and domestic animals, and the
costs imposed by the displacement of farmers and affected other individuals.
This is established on the basis of the principles applied by the Trail Smelter
awards and the Fifth Report of the UNCC Panel. The evidence in respect of these
specific claims will be submitted at a further phase of the proceedings.
969See supra Chap. VI, Sec. II. “The Harm to Plants” & Sec. III. “The Harm to Animals”.
970
See supra paras. 6.55, 6.107.
971See supra Ch. VI, paras. 6.82-6.87.
401 C. ECUADOR CLAIMS COMPENSATION FOR ENVIRONMENTAL D AMAGE AND
THE D EPLETION OF N ATURAL R ESOURCES
10.38 In addressing this aspect of Ecuador’s claim, it is worth bearing in mind
that the environment of the border region between Ecuador and Colombia is
characterised by a unique natural wealth and diversity. As described in Chapter
II, over 40% of the land in the border provinces of Esmeraldas, Carchi and
Sucumbíos is covered by native forest, and the region is home to two of the
972
world’s tropical forest hotspots . More than half of the world’s threatened
amphibians reside in the corridor that includes the Ecuadorian border with
973
Colombia . Ecuador is recognised as one of just 17 “megadiverse” countries in
the world, possessing a disproportionately large share of the world’s biological
974
diversity . It is into this environment that Colombia -- which is itself a
“megadiverse” country -- has deposited and dispersed the spraying of toxic
herbicides. The adverse effects on cultivated crops and domestic animals,
975
including birds and fish, are replicated in wild flora and fauna . In addition,
there is evidence of pollution of fresh water resources in the border region. This
has had adverse effects on the life and health of humans, animals and plants that
976
depend upon them .
10.39 Given the vital importance of the ecosystem services performed by the
environmental resources of the region, as well as their intrinsic value, it is
essential that they are restored as quickly and effectively as feasible. Ecuador
97See supra Ch. II, para. 2.15.
97Ibid., para. 2.14.
974
Ibid., para. 2.12.
97See supra Ch. VI, paras. 6.82, 6.86, 6.91, 6.107, 6.117, 6.120, 6.123.
97See supra para. 6.49.
402therefore seeks compensation for monitoring and assessment of environmental
damage (addressed under heading (D) below) as well as for reasonable measures
to clean and restore the environment as appropriate. Where restoration is not
possible or where there is an interim loss of environmental services pending
restoration, Ecuador is entitled to compensation for “pure” environmental
damage.
10.40 In its work on the allocation of loss in the case of transboundary harm
arising out of hazardous activities, the International Law Commission identifies
as elements of “damage”: “loss or damage by impairment of the environment”;
“the cost of reasonable measures of reinstatement of … the environment,
including natural resources”; and “the costs of reasonable response measures” 977.
978
10.41 The ILC Commentary notes that Draft Principle 3(b) gives:
“a prominent place to the protection and preservation of the
environment and to the associated obligations to mitigate the
damage and to restore or reinstate the same to its original
condition to the extent possible. Thus, it emphasizes the more
recent concern of the international community to recognize
protection of the environment per se as a value by itself without
having to be seen only in the context of damage to persons and
property. It reflects the policy to preserve the environment as a
valuable resource not only for the benefit of the present generation
977International Law Commission, Draft Principles on the Allocation of Loss in the Case of
Transboundary Harm Arising Out of Hazardous Activities, with Commentaries, Yearbook of the
International Law Commission, (hereinafter “ILC Draft Principles on Allocation of Loss”), Vol.
II, Part Two (2006). In Resolution 61/36 of 2006, the United Nations General Assembly took
note of the principles and commended them to the attention of States. U.N.G.A.,Allocation of
Loss in the Case of Transboundary Harm Arising Out of Hazardous Activities, Sixty-First Session,
agenda item 78, U.N. Doc. A/RES/61/36 (18 Dec. 2006).
978Principle 3, paragraph (b) provides that “The purpose of the present draft principles are: . . . (b)
to preserve and protect the environment in the event of transboundary damage, especially with
respect to mitigation of damage to the environment and its restoration or reinstatement”. ILC
Draft Principles on Allocation of Loss, op. cit.
403 but also for future generations. In view of its novelty and the
common interest in its protection, it is important to emphasize that
damage to the environment per se could constitute damage subject
to prompt and adequate compensation, which includes
reimbursement of reasonable costs of re979nse and restoration or
reinstatement measures undertaken” .
10.42 As noted above, the UNCC had occasion to consider the assessment of
claims for environmental damage in the context of Security Council Resolution
687, which reaffirmed that Iraq was “liable under international law for any direct
loss, damage, including environmental damage and depletion of natural resources
980
… as a result of Iraq’s unlawful invasion and occupation of Kuwait” . The
UNCC Governing Council decided that compensation in respect of environmental
damage or depletion of natural resources would include losses and expenses
arising from:
(a) abatement and prevention of environmental damage . . .;
(b) reasonable measures already taken to clean and restore the
environment or future measures which can be documented as
reasonably necessary to clean and restore the environment;
(c) reasonable monitoring and assessment of the environmental
damage for the purpose of evaluating and abating the harm and
restoring the environment;
(d) reasonable monitoring of public health and performing medical
screening for the purposes of investigating and combating
increased health risks as a result of the environmental damage; and
981
(e) depletion of or damage to natural resources .
979Ibid., Principle 3, Commentary para. 6.
980United Nations Security Council, Resolution 687, 2981st Meeting, S/RES/687 (1991), para. 16.
981UNCC, Criteria for Additional Categories of Claims (Governing Council Decision 7) , U.N.
Doc. S/AC.26/1991/7/Rev.1 (1992), para. 35.
40410.43 Ecuador claims in respect of each of these heads and will provide
complete and detailed evidence at a subsequent stage of these proceedings.
10.44 The UNCC Panel of Commissioners charged with assessing claims for
environmental damage and depletion of natural resources noted that the criteria
982
set out by the Governing Council were not exhaustive . One question which
arose before the Panel was whether compensation was available for “pure”
environmental damage. The Panel of Commissioners found that the term
“environmental damage” was not limited to damage to natural resources with a
983
commercial value , and that the temporary nature of loss or damage to the
environment did not affect the question of compensability, although it might
984
affect the nature and quantum of the compensation deemed appropriate . In
reaching these conclusions, the Panel had regard to the guidance contained in
Security Council Resolution 687 and relevant decisions of the UNCC Governing
985
Council . The Panel stated that it did not consider that its finding was
inconsistent with any principle or rule of general international law. In the Panel’s
view, there was “no justification for the contention that general international law
986
precludes compensation for pure environmental damage” .
10.45 The ILC has also recognised some support for the principle that pure
environmental damage may be the subject of a reparation claim. Paragraph 18 of
982
UNCC, Report and Recommendations made by the Panel of Commissioners concerning the
Second Instalment of "F4" Claims, (hereinafter “Report on the Second Instalment of F4 Claims”)
U.N. Doc. S/AC.26/2002/26 (2002), paras. 22-23.
983
UNCC, Report on the Fifth Instalment of F4 Claims, op. cit., para. 55. EM, Vol. II, Annex 35.
984
Ibid., para. 56.
985Ibid., para. 55.
986
Ibid., para. 58.
405commentary to Principle 2 of the ILC Principles on the Allocation of Loss in the
Case of Transboundary Harm Arising Out of Hazardous Activities states:
“Recent trends are also encouraging in allowing compensation for
loss of ‘non-use value’ of the environment. There is some support
for this claim from the Commission itself when it adopted its draft
articles on State responsibility, even though it admitted that such
damage is difficult to quantify. The recent decisions of the United
Nations Compensation Commission (UNCC) in opting for a broad
interpretation of the term ‘environmental damage’ is a pointer of
developments to come. In the case of F-4 category of
environmental and public health claims, the F-4 Panel of the
UNCC allowed claims for compensation for damage to natural
resources without commercial value (so-called ‘pure’
environmental damage) and also claims where there was only a
temporary los987f resource use during the period prior to full
restoration.”
10.46 In the Commentary to the Draft Articles on State Responsibility, the ILC
has observed in relation to environmental damage that:
“environmental damage will often extend beyond that which can
be readily quantified in terms of clean-up costs or property
devaluation. Damage to such environmental values (biodiversity,
amenity, etc. – sometimes referred to as ‘non-use values’) is, as a
matter of principle, no less real and compensable than damage to
988
property, although it may be difficult to quantify”.
10.47 As regards the methodology for valuation, which will be addressed in a
later phase of the proceedings, the UNCC Panel of Commissioners recognised
different approaches. The Panel observed that
“international law does not prescribe any specific and exclusive
methods of measurement for awards of damages for
987ILC Draft Principles on Allocation of Loss,op. cit. , Principle 2, Commentary para. 18.
Footnotes omitted.
988
ILC Draft Articles on State Responsibility, op. cit., Art. 36, Commentary para. 15.
406 internationally wrongful acts by states. The general rule is to
restore what has been damaged to integrity or, if this is not
possible, to provide an equivalent for it. The overall criterion is
always that of effective reparation for the wrongful act. Hence,
even in the absence of precise rules or prescriptions on the
methods for evaluating damage, courts or tribunals are entitled and
required to evaluate damage and determine appropriate
compensation, relying on general principles for guidance,
particularly the principle that reparation must, as f989as possible,
wipe out all the consequences of the illegal act” .
10.48 In this regard, the UNCC Panel of Commissioners cited the statement of
the arbitral tribunal in the Trail Smelter case:
“Where the [wrongful act] itself is of such a nature as to preclude
the ascertainment of the amount of damages with certainty, it
would be a perversion of the fundamental principles of justice to
deny all relief to the injured person, and thereby relieve the
wrongdoer from making any amend for his acts. In such case,
while the damages may not be determined by mere speculation or
guess, it will be enough if the evidence show the extent of the
damages as a matter of just and reasonable inference, although the
990
result may only be approximate.”
10.49 Having regard to this approach, which reflects established international
practise, Ecuador will at the next stage of these proceedings tender complete
evidence and information in support of its claim for environmental damage.
989UNCC, Report on the Fifth Instalment of F4 Claims, op. cit., para. 80. EM, Vol. II, Annex 35.
990Ibid. (citing Trail Smelter Arbitration (United States of America v. Canada), Reports of
International Arbitral Awards, Vol. 3 (1941), pp. 1911, 1920.
407 D. ECUADOR CLAIMS COMPENSATION FOR THE COSTS OFM ONITORING TO
DENTIFY AND A SSESSFUTURE RISKS TOPUBLIC HEALTH , HUMAN R IGHTS AND
THE E NVIRONMENT
10.50 Ecuador has identified a number of adverse effects of Colombia’s aerial
spraying on human health, human rights and the environment arising from
Colombia’s aerial herbicide spraying. These effects are ongoing, and the full
effects will only be appreciable over time. It is apparent that as a result of the
spraying, Ecuador will need to conduct specific monitoring and assessment
activities in order to formulate and implement effective measures to rectify or
alleviate damage and to identify any further medium or long-term effects and plan
appropriate remedial action.
1. Public Health
10.51 Immediate and short-term effects of exposure to herbicide spraying on
human health have been described in Chapter VI. In order to address any
possible longer-term health impacts of exposure to the chemicals contained in the
herbicide mix (including through contamination of water supplies), Ecuador will
need to implement public health monitoring programmes in the affected regions.
10.52 In analysing claims arising out of Iraq’s invasion and occupation of
Kuwait, the UNCC recognised that compensation was due to affected States in
respect of “[r]easonable monitoring of public health and performing medical
screenings for the purposes of investigation and combating increased health risks
991
as a result of the environmental damage” In reviewing claims from Iran, the
UNCC allowed claims in relation to, for example, studies to assess the impact of
99UNCC, Criteria for Additional Categories of (Governing Council Decision 7) ,
S/AC.26/1991/7/Rev.1 (1992), para. 35.
408airborne pollutants from oil well fires on respiratory and cardiovascular health in
a particular region of a claimant State, as well as studies of mental health impacts
992
resulting from trauma experienced in the context of Iraq’s invasion of Kuwait .
In respect of another claimant state, the UNCC allowed claims for long-term
public health risk assessment and monitoring programmes, addressing for
example, the identification of pollutants, pathways of exposure and toxicity
assessments 99.
10.53 At a subsequent phase of these proceedings Ecuador will submit evidence
as to the costs it has incurred in respect of medical treatments and investigations
connected to the spraying. It will also tender evidence as to the costs of health
monitoring or investigations required over the short, medium and long terms.
2. Environment: Flora and Fauna
10.54 In order to identify damage, formulate effective restoration or remediation
plans and address any possible delayed or longer-term environmental impacts of
the chemicals contained in the herbicide mix (including through contamination of
water supplies), Ecuador will need to implement environmental monitoring and
assessment programmes in the affected regions.
10.55 The UNCC, as noted above, addressed compensation claims in respect of
“reasonable monitoring and assessment of the environmental damage for the
994
purpose of evaluating and abating the harm and restoring the environment”. It
992UNCC, Report on the Fifth Instalment of F4 Claims, op. cit., para. 266 et seq. EM, Vol.II,
Annex 34.
993
Ibid., para. 494 et seq.
994See supra para. 10.42.
409is notable that the UNCC Panel found that environmental monitoring and
assessment were justified even where it was not yet firmly established that
environmental damage had occurred. Thus, conclusive proof of environmental
damage was not a prerequisite for a monitoring and assessment activity to be
995
compensable . However, the Panel did not award compensation for monitoring
996
and assessment activities that were “purely theoretical and speculative” .
10.56 There is nothing theoretical and speculative about the need for monitoring
and assessment in the present case. The potential of glyphosate to be harmful to
997
the natural environment is well known -- it kills all plants . Its proper use is
subject to strict guidance and controls. While Ecuador does not know the precise
combination of chemicals contained in the herbicide mix, it is clear that
uncontrolled spraying or drift of the chemicals sprayed by Colombia onto the
natural environment of Ecuador has caused serious harm. However, the nature
and full extent of the harm is not yet fully known. In these circumstances, it is
essential that Ecuador undertake monitoring and assessment to better understand
the nature and extent of the damage caused, with a view to identifying and
implementing restorative measures.
10.57 As with other claims, Ecuador will tender specific and complete evidence
as to its environmental claims at a later stage of these proceedings.
995UNCC, Report on the Fifth Instalment of F4 Claims, op. cit., paras. 29-30. EM, Vol. II, Annex
34.
996
Ibid., para. 31.
997See supra Chap. V, paras. 5.6–5.9.
410 E. ECUADOR C LAIMS COMPENSATION FOR O THER LOSS OR D AMAGE
10.58 Ecuador reserves its right to amend or supplement the heads under which
it makes claims for compensation, including in relation to violations of
fundamental human rights and the rights of indigenous people.
Section V. Satisfaction
10.59 Insofar as damage cannot be made good by restitution or compensation,
the State responsible for an internationally wrongful act is under an obligation to
998
give satisfaction for the injury caused by that a. In the Corfu Channel case,
the Court made a declaration, as a form of satisfaction, of the violation of
999
Albanian sovereignty by the United Kingdom .
10.60 In addition to its claims for cessation and non-repetition, reparation and
compensation, Ecuador requests that the Court declare that Colombia has violated
the territorial sovereignty of Ecuador, and other obligations under international
law, by causing the deposit on the territory of Ecuador of toxic herbicides.
998
ILC Draft Articles on State Responsibility, op. cit., Art. 37.
99Corfu Channel (United Kingdom v. Albania), Judgment, I.C.J. Reports 1949, p. 4, p. 35.
411 SUBMISSIONS
On the basis of the facts and law referred to above, Ecuador requests the
Court to adjudge and declare that:
(A) Colombia has violated its obligations under international law by
causing or allowing the deposit on the territory of Ecuador of toxic
herbicides that have caused damage to human health, property and
the environment;
(B) Colombia shall indemnify Ecuador for any loss or damage caused
by its internationally unlawful acts, namely the use of herbicides
by aerial dispersion, and in particular:
(i) death or injury to the health of any person or persons
arising from the use of such herbicides;
(ii) any loss of or damage to the property or livelihood of such
persons;
(iii) violation of the human rights of such persons;
(iv) violation of the special rights of indigenous peoples;
(v) environmental damage or the depletion of natural
resources;
(vi) the costs of monitoring to identify and assess future risks to
public health, human rights and the environment resulting
from Colombia’s use of herbicides; and
(vii) any other loss or damage;
(C) Colombia shall
(i) respect the sovereignty and territorial integrity of Ecuador;
(ii) respect the human rights of Ecuadorian nationals;
(iii) respect the special rights of indigenous peoples in Ecuador;
(iv) take no action to harm the natural environment in Ecuador;
412(v) forthwith, take all steps necessary to prevent, on any part of
its territory, the use of any toxic herbicides in such a way
that they could be deposited onto the territory of Ecuador;
and
(vi) prohibit the use, by means of aerial dispersion, of such
herbicides on or near any part of its border with Ecuador.
413414 LIST OF ANNEXES
VOLUME II
TREATIES, LAWS AND REGULATIONS
Annex 1 American Treaty on Pacific Settlement, “Pact of Bogotá” 30
UNTS 55 (30 Apr. 1948)
Annex 2 Pact of Bogotá, Signatories and Ratifications
Annex 3 United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, U.N. Doc. E/CONF.82/15
(20 Dec. 1988), reprinted in 28 I.L.M. 493 (1989)
Annex 4 United Nations Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, Status of Treaty Adherence
(1998)
Annex 5 International Conference of American States, Perfecting and
Coordination of International Peace Instruments (21 Dec. 1938)
Annex 6 Inter-American Conference on Problems of War and Peace (21
Feb. – 8 Mar. 1945)
Annex 7 South Africa, Fertilizer, Farm Feeds, Agricultural Remedies and
Stock Remedies Act 36 of 1947
Annex 8 United States, Federal Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. Sec. 136j(a)(2)(G) (1947)
Annex 9 Charter of the Organization of American States , UNTS I-1609
(1948), entered into force 13 Dec. 1951
Annex 10 Republic of Colombia, Decree No. 2811 , National Code of
Renewable Natural Resources and Environmental Protection (18
Dec. 1974)
Annex 11 Republic of Colombia, Ministry of Health, Decree No. 1843 (22
July 1991), as amended by Decree No. 695 (26 April 1995) and
Decree No. 4368 (4 Dec. 2006)
Annex 12 Republic of Colombia, Ministry of Environment, Law No. 99 (22
Dec. 1993)
416Annex 13 United Kingdom, Control of Pesticides Regulations , S.I. 1510
(1986), Regulation 4(5), as amended by Control of Pesticides
(Amendment) Regulations, S.I. 188 (1997)
Annex 14 Republic of Colombia, Ministry of Environment, Resolution No.
341, Adopting some decisions in relation to the Program for the
Eradication of Illicit Crops by Aerial Spraying with Glyphosate
(2001)
Annex 15 Republic of Colombia, Ministry of Environment, Resolution No.
1065, Environmental Management Plan (26 Nov. 2001)
Annex 16 Canada, Pest Control Products Act , R.S.C. Chap. 28, Sec. 6(5)
(2002)
Annex 17 Andean Community, Resolution 630, Andean Technical Manual
for the Registration and Control of Chemical Pesticides for
Agricultural Use (25 June 2002)
Annex 18 Republic of Ecuador, Ministry of Agriculture, General
Regulation of Pesticides and Related Products for Agricultural
Use, Special Official Registry, Book II, Title XXVIII, (20 Mar.
2003)
Annex 19 Republic of Colombia, Ministry of Environment Resolution No.
0670, Whereby a sanction is imposed and other decisions are
made (19 June 2003)
Annex 20 Republic of Colombia, Institute of Agriculture and Livestock,
Resolution No. 3759, By which the provisions of the Registration
and Control of Chemical Pesticides for Agricultural Use are
issued (16 Dec. 2003)
Annex 21 European Parliament, Legislative Resolution of 13 January 2009
on the Council Common Position for Adopting a Directive of the
European Parliament and of the Council Establishing a
Framework for Community Action to Achieve a Sustainable Use
of Pesticides, 6124/2008 – C6-0323/2008 –2006/0132(COD) (13
Jan. 2009)
U.N. DOCUMENTS
Annex 22 United Nations Office on Drugs and Crime, Colombia Coca
Cultivation Survey for 2004 (June 2005)
Annex 23 United Nations Office on Drugs and Crime, Colombia Coca
Cultivation Survey for 2005 (June 2006)
417Annex 24 United Nations Office on Drugs and Crime, Colombia Coca
Cultivation Survey for 2006 (June 2007)
Annex 25 United Nations Office on Drugs and Crime, Coca Cultivation in
the Andean Region, A Survey of Bolivia, Colombia and Peru
(June 2008)
Annex 26 United Nations Office on Drugs and Crime, World Drug Report
(2008)
Annex 27 United Nations, The Northern Border of Ecuador: Evaluation
and Recommendations of the Interagency Mission of the United
Nations System in Ecuador (July 2004)
Annex 28 United Nations, Report on the Preliminary Technical Mission of
the United Nations (April 2006)
Annex 29 UNHCR et al., Impact of the Spraying Along the Colombian-
Ecuadorian Border Area (February 2007)
Annex 30 Report of the Special Rapporteur on the Situation of Human
Rights and Fundamental Freedoms of Indigenous People,
Rodolfo Stavenhagen: Mission to Ecuador (25 April-4 May
2006), U.N. Doc. A/HRC/4/32/Add.2, (28 Dec. 2006)
Annex 31 Report of the Special Rapporteur on the Right of Everyone to the
Enjoyment of the Highest Attainable Standard of Physical and
Mental Health, Paul Hunt: Preliminary Note on Mission to
Ecuador and Colombia, Addendum , A/HRC/7/11/Add.3 (4 Mar.
2007)
Annex 32 Report of the Special Rapporteur, Okechukwu Ibeanu , Adverse
Effects of the Illicit Movement and Dumping of Toxic and
Dangerous Products and Wastes on the Enjoyment of Human
Rights, U.N. Doc. A/HRC/5/5 (5 May 2007)
Annex 33 Report of the Special Rapporteur on the Right to Food, Jean
Ziegler, Addendum: Communications Sent to Governments and
Other Actors and Replies Received , U.N. Doc.
A/HRC/4/30/Add.1 (18 May 2007)
Annex 34 United Nations Compensation Commission, Report and
Recommendations made by the Panel of Commissioners
concerning the First Instalment of "F4" Claims , U.N. Doc.
S/AC.26/2001/16 (2001)
418Annex 35 United Nations Compensation Commission, Report and
Recommendations made by the Panel of Commissioners
concerning the Fifth Instalment of "F4" Claims , U.N. Doc.
S/AC.26/2005/10 (2005)
DIPLOMATIC DOCUMENTS
Annex 36 Diplomatic Note 12437-47 SP/DGA/DTANC, sent from the
Ministry of Foreign Affairs of Ecuador to the Embassy of
Colombia in Ecuador (24 July 2000)
Annex 37 Diplomatic Note E-1766, sent from the Embassy of Colombia in
Quito to the Ministry of Foreign Affairs of Ecuador (19 Dec.
2000)
Annex 38 Diplomatic Note 21085 SSN/DGST, sent from the Ministry of
Foreign Affairs of Ecuador to the Embassy of Colombia in Quito
(16 Feb. 2001)
Annex 39 Diplomatic Note E-297, sent from the Embassy of Colombia in
Quito to the Ministry of Foreign Affairs of Ecuador (12 Mar.
2001)
Annex 40 Diplomatic Note 31036/2001 SG/SSN, sent from the Ministry of
Foreign Affairs of Ecuador to the Embassy of Colombia in Quito
(27 Mar. 2001)
Annex 41 Diplomatic Note 55416/2001- GM/SOI/SSN, sent from the
Ministry of Foreign Affairs of Ecuador to the Ministry of Foreign
Affairs of Colombia (2 July 2001)
Annex 42 Diplomatic Note DM/AL No. 25009, sent from the Ministry of
Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Ecuador (14 July 2001)
Annex 43 Diplomatic Note E-180, sent from the Embassy of Colombia in
Quito to the Ministry of Foreign Affairs of Ecuador (20 Feb.
2002)
Annex 44 Diplomatic Note E-340, sent from Embassy of Colombia in Quito
to the Ministry of Foreign Affairs of Ecuador (15 Apr. 2002)
Annex 45 Diplomatic Note 47839 DGAF, sent from the Ministry of Foreign
Affairs of Ecuador to the Embassy of Colombia in Quito (18 Oct.
2002)
419 Diplomatic Note 48975-2002/DGPB, sent from the Ministry of
Annex 46 Foreign Affairs of Ecuador to the Embassy of Colombia in Quito
(23 Oct. 2002)
Annex 47 Diplomatic Note 23205/GM, sent from the Ministry of Foreign
Affairs of Ecuador to the Embassy of Colombia in Quito (10 Apr.
2003)
Annex 48 Diplomatic Note VRE 32759, sent from the Ministry of Foreign
Affairs of Colombia to the Embassy of Ecuador in Bogotá (23
Sep. 2003)
Annex 49 Diplomatic Note No. DBR/CAL 37677, sent from the Ministry of
Foreign Affairs of Colombia to the Embassy of Ecuador in
Bogotá (9 Oct. 2003)
Annex 50 Diplomatic Note VRE/DBR 40153, sent from the Ministry of
Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Ecuador (12 Nov. 2003)
Annex 51 Diplomatic Note 75204/2003-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (21 Nov. 2003)
Annex 52 Diplomatic Note 68934/2003-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (23 Oct. 2003)
Annex 53 Diplomatic Note DM/DBR 47356, sent from the Ministry of
Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Ecuador (15 Dec. 2003)
Annex 54 Diplomatic Note DBR/CAL 1405, sent from the Ministry of
Foreign Affairs of Colombia to the Embassy of Ecuador in
Bogotá (14 Jan. 2004)
Annex 55 Diplomatic Note 4820/2004-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (10 Feb. 2004)
Annex 56 Diplomatic Note 10181/2004-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (16 Feb. 2004)
Annex 57 Diplomatic Note DM/DBR 8092, sent from the Ministry of
Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Ecuador (23 Feb. 2004)
420Annex 58 Diplomatic Note 15715/2004-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (9 Mar. 2004)
Annex 59 Diplomatic Note 15839/2004-GM-VM, sent from the Ministry of
Foreign Affairs of Ecuador to the Embassy of Colombia in Quito
(10 Mar. 2004)
Annex 60 Presidential Joint Declaration between Ecuador and Colombia,
Bogotá (17 Mar. 2004)
Annex 61 Diplomatic Note 20434/2003-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (31 Mar. 2004)
Annex 62 Note SARE-142, sent from the National Directorate of Narcotics
of the Ministry of Interior and Justice of Colombia to the
President of the Technical-Scientific Commission of Ecuador
(Apr. 14 2004)
Annex 63 Report of the Ecuadorian Delegation to the III Meeting of the
Joint Scientific and Technical Commission (26 May 2004)
Annex 64 Minutes of the Fourth Meeting of the Joint Scientific and
Technical Commission (2 Aug. 2004)
Annex 65 Diplomatic Note DPM/CDR 65881, sent from the Ministry of
Foreign Affairs of Colombia to the Embassy of Ecuador in
Bogotá (4 Nov. 2004)
Annex 66 Diplomatic Note 4-2-439/2004, sent from the Embassy of
Ecuador in Bogotá to the Ministry of Foreign Affairs of
Colombia (8 Nov. 2004)
Annex 67 Diplomatic Note DAA/CAL 23927, sent from the Ministry of
Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Ecuador (6 May 2005)
United Nations, General Assembly Sixtieth Session, 11th Plenary
Annex 68
Meeting, A/60/PV.11 (18 Sep. 2005)
Annex 69 Diplomatic Note 4-2-108/2005, sent from the Permanent Mission
of Ecuador to the U.N. to the General Secretariat of the U.N. (19
Sep. 2005)
Annex 70 Colombian President Alvaro Uribe, Remarks at the Summit of
Antinarcotics Chiefs of Latin America and the Caribbean, Casa
de Nariño, Secretaría de Prensa (17 Oct. 2005)
421Annex 71 Note from the Department of Political Affairs of the U.N. to the
Permanent Mission of Ecuador to the U.N. (29 Nov. 2005)
Annex 72 Joint Declaration of the Ministers of Foreign Affairs of Ecuador
and Colombia (7 Dec. 2005)
Annex 73 Diplomatic Note 2854/06/SSNDF/DGRFC, sent from the
Ministry of Foreign Affairs of Ecuador to the Embassy of
Colombia in Quito (20 Jan. 2006)
Annex 74 Diplomatic Note 17533/GM, sent from the Ministry of Foreign
Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (2 May 2006)
Annex 75 Official email C.E.No. /2006-MECUCOL, from the Embassy of
Ecuador in Bogotá to the Ministry of Foreign Affairs of Ecuador
(11 Dec. 2006)
Annex 76 Diplomatic Note 52025-GM/SSNDF/DGSN, sent from the
Ministry of Foreign Affairs of Ecuador to the Embassy of
Colombia in Quito (14 Dec. 2006)
Annex 77 Diplomatic Note 52284/06/-GM, sent from the Ministry of
Foreign Affairs of Ecuador to the Secretary General of the
Organization of American States (15 Dec. 2006)
Annex 78 Speech of Ecuadorian Minister of Foreign Affairs in the OAS
Permanent Council (9 Jan. 2007)
Annex 79 Speech of Colombian Vice Minister of Foreign Affairs in the
OAS Permanent Council (9 Jan. 2007)
Annex 80 Minutes of the First Meeting of the Bi-National Scientific-
Technical Commission (10 Apr. 2007)
Annex 81 Ecuadorian Scientific-Technical Commission Aide Memoire on
the First Meeting (11 Apr. 2007)
Annex 82 Minutes of Ecuador’s and Colombia’s Foreign Ministers Meeting
(28 May 2007)
Annex 83 Ecuadorian Scientific-Technical Commission, Report on the
Second Meeting (9 July 2007)
Annex 84 Ecuadorian Scientific-Technical Commission, Aide Memoire on
the Second Meeting (9 July 2007)
Annex 85 Diplomatic Note DM/VRE 35868, sent from the Ministry of
Foreign Affairs of Colombia to the Ministry of Foreign Affairs of
Ecuador (18 July 2007)
422Annex 86 Diplomatic Note 35224/GM/2007, sent from the Ministry of
Foreign Affairs of Ecuador to the Ministry of Foreign Affairs of
Colombia (27 July 2007)
Annex 87 Diplomatic Note DM/VRE/DSF 7649, sent from the Minister of
Foreign Affairs of Colombia to the Minister of Foreign Affairs of
Ecuador (25 Feb. 2008)
Annex 88 Diplomatic Note 14087/GM/GVMRE/SSNRF/2008, sent from
the Ministry of Foreign Affairs of Ecuador to the Embassy of
Argentina in Bogotá (24 Mar. 2008)
COLOMBIAN GOVERNMENT DOCUMENTS
Annex 89 Government of Putumayo, Government of Nariño et al.,
Declaration of Puerto Asís (8-9 Sept. 2000)
Annex 90 Republic of Colombia, Administrative Department of Health
(DASALUD) Putumayo Province, Office of Planning,
Epidemiology Section, Effects of Aerial Spraying with
Glyphosate Valle del Guamuez – San Miguel – Orito, Putumayo
(Feb. 2001)
Annex 91 Republic of Colombia, Office of the Ombudsman, Ombudsman
Report No. 1, Fumigations and Alternative Development Projects
in Putumayo (9 Feb. 2001)
Annex 92 Republic of Colombia, Office of the Ombudsman, Ombudsman
Resolution No. 4 (12 Feb. 2001)
Annex 93 Comptroller General of the Republic of Colombia, Comptroller
for the Environment, Special Audit Regarding Illicit Crop
Eradication Policies (July 2001)
Annex 94 Comptroller General of the Republic of Colombia, Plan
Colombia: Second Evaluation Report (10 Dec. 2001)
Annex 95 Republic of Colombia, Environmental Management Plan for the
Illicit Crop Eradication Program Using Aerial Spraying with the
Herbicide Glyphosate (ICEPG) (2003)
Annex 96 Republic of Colombia, National Health Institute,Evaluation of
the Effects of Glyphosate on Human Health in Illicit Crop
Eradication Program Influence Zones (2003)
423 Annex 97 Republic of Colombia, Office of the Ombudsman, Ombudsman
Resolution No. 28 , The Coffee Crisis and the Possible
Fumigations in the Province of Caldas (21 May 2003)
Annex 98 Comptroller General of the Republic of Colombia, Plan
Colombia: Fourth Evaluation Report (July 2003)
Annex 99 Comptroller General of the Republic of Colombia, Plan
Colombia: Fifth Evaluation Report (Dec. 2004)
Annex 100 Colombian National Police, Antinarcotics Directive, Monitoring
and Evaluation of the Spraying Operation to Eradicate Ilicit
Coca Crops Inside Sierra de la Macarena National Park (Nov.
2006)
Annex 101 Republic of Colombia, Environmental Risk of the Herbicide
Glyphosate (date unknown)
Annex 102 Republic of Colombia, Office of the Ombudsman, The Execution
of the Strategy for Aerial Eradication of Illicit Crops, with
Chemicals, from a Constitutional Perspective (date unknown)
VOLUME III
CHEMICAL LABELS AND SAFETY INFORMATION
Annex 103 Argentina, Roundup TRANSORB Material Safety Data Sheet
Annex 104 Argentina Roundup Ultramax Label Recommendations
Annex 105 Australia Roundup Label
Annex 106 Australia Roundup Biactive Label
Annex 107 Australia Roundup CT Label
Annex 108 Australia Roundup PowerMAX Label
Annex 109 Brazil Roundup Label
Annex 110 Canada Roundup Original Label
Annex 111 Canada Vision Silviculture Herbicide Label
Annex 112 Cosmoagro, S.A., Cosmo-Flux 411F
Annex 113 Colombia Cosmo-Flux 411F Label
Annex 114 Cosmo-Flux 411F Safety Data Sheet
424Annex 115 Colombia Roundup SL Label
Annex 116 Ecuador Ranger 480 Label
Annex 117 Germany Roundup TURBO Label
Annex 118 Germany Roundup UltraMax Label
Annex 119 Italy Roundup 450 Plus Label
Annex 120 Japan Roundup Agrochemical Registration
Annex 121 Japan Roundup Product Safety Data Sheet
Annex 122 South Africa Roundup Label
Annex 123 United Kingdom Glyphosate 360 Label
Annex 124 United Kingdom Roundup Ultra ST Label
Annex 125 United States Roundup Export Label , United States Pesticide
Product Label System, Registration No. 524-308 (9 July 1997)
Annex 126 United States Fuete SL Label , United States Pesticide Product
Label System, Registration No. 524-308 (19 Feb. 2002)
Annex 127 United States Roundup Original Label
Annex 128 United States Roundup Pro Label
Annex 129 United States Roundup SL Label, United States Pesticide Product
Label System, Registration No. 524-308 (15 Nov. 2001)
Annex 130 Intentionally Omitted
SCIENTIFIC AND TECHNICAL REPORTS
Annex 131 C. André Lévesque & James E. Rahe, Herbicide Interactions with
Fungal Root Pathogens, with Special Reference to Glyphosate ,
Annu. Rev. Phytopathol., Vol. 30 (1992)
Annex 132 United States Environmental Protection Agency, Glyphosate
Reregistration Eligibility Decision Fact Sheet (Sep. 1993)
Annex 133 D.C. Sands et al., Characterization of a Vascular Wilt of
Erythroxylum coca Caused by Fusarium oxyspurum f. sp.
Erythrowyli Forma Specialis Nova, Plant Disease, Vol. 81, No. 5
(May 1997)
425Annex 134 United States Environmental Protection Agency, GLYPHOSATE
– Report of the Hazard Identification Review Committee (20 Apr.
1998)
Annex 135 Intentionally Omitted
Annex 136 United States Department of Agriculture, Agricultural Research
Service, Discovery and Development and Mechanism of Action of
Biocontrol Agents for Perennial and Annual Weeds (1 Oct. 1993
– 30 Sep. 1998)
Annex 137 United States Department of Agriculture, Agricultural Research
Service, Mechanisms of Microbial-Plant Interactions Related to
Biocontrol of Weeds and Narcotic Plants (1 Oct. 1993 – 30 Sep.
1998)
Annex 138 Ron Collins, Agronomist, Weed Science Laboratory, Agricultural
Research Service, United States Department of Agriculture,
Glyphosate Aerial Application to Control Erythroxylum sp. In
Colombia: Spray Droplet Evaluation, Draft (23 Dec. 1998)
Annex 139 United States Department of Agriculture, Agricultural Research
Service, Strategies for Controlling Narcotic Plant Production
(30 Sep. 1995 – 29 Sep. 2000)
Annex 140 United States Department of Agriculture, April 2001 Colombia
Coca Eradication Verification Mission Trip Report (13 June
2001)
Annex 141 Ronald T. Collins & Charles S. Helling, Surfactant-Enhanced
Control of Two Erythroxylum Species by Glyphosate , Weed
Technology, Vol. 16 (2002)
Annex 142 United States Environmental Protection Agency, GLYPHOSATE
– 2nd Report of the Hazard Identification Assessment Review
Committee (22 Jan. 2002)
Annex 143 United States Environmental Protection Agency, Office of
Prevention, Pesticides and Toxic Substances, Report on Issues
Related to the Aerial Eradication of Illicit Coca in Colombia,
Response from EPA Assistant Administrator Johnson to Secretary
of State (19 Aug. 2002)
Annex 144 United States Department of State, Bureau for International
Narcotics and Law Enforcement Affairs, Report on Issues
Related to the Aerial Eradication of Illicit Coca in Colombia:
Chemicals Used in the Aerial Eradication of Illicit Coca in
Colombia and Conditions of Application (Sep. 2002)
426Annex 145 Intentionally Omitted
Annex 146 United States Environmental Protection Agency, Office of
Pesticide Programs, Details of the 2003 Consultation for the
Department of State: Use of Pesticide for Coca and Poppy
Eradication Program in Colombia (June 2003)
Annex 147 United States Department of Agriculture, Agricultural Research
Service, Pathogens of Narcotic Crops and Their Use in
Biological Control Strategies to Reduce Narcotics (1 Oct. 1998 –
30 Sep. 2003)
Annex 148 United States Department of State, Bureau for International
Narcotics and Law Enforcement Affairs, Report on Issues
Related to the Aerial Eradication of Illicit Coca in Colombia:
Updated Report on Chemicals Used in the Aerial Eradication
Program (Dec. 2003)
Annex 149 United States Environmental Protection Agency, Office of
Pesticide Programs, Letter and Consultation Report from
Administrator Leavitt (17 Nov. 2004)
Annex 150 Rick A. Relyea, The Impact of Insecticides and Herbicides on the
Biodiversity and Productivity of Aquatic Communities ,
Ecological Applications, Vol. 15, No. 2 (2005)
Annex 151 Keith R. Solomon et al., Environmental and Human Health
Assessment of the Aerial Spray Program for Coca and Poppy
Control in Colombia , prepared for the Inter-American Drug
Abuse Control Commission (CICAD) section of the Organization
of American States (OAS) (31 Mar. 2005)
Annex 152 National University of Colombia, Institute of Environmental
Studies, Observations on the “Study of the effects of the Program
for the Eradication of Unlawful Crops by aerial spraying with
glyphosate herbicide (PECIG) and of unlawful crops on human
health and the environment (10 May 2005)
Annex 153 Ecuadorian Scientific-Technical Commission, Technical Report
from the CCTE on the CICAD Document on the Study of the
Effects Produced by Spraying Glyphosate (within the coca crop
eradication program) on the Border Between Ecuador and
Colombia (2 June 2005)
427Annex 154 United States Environmental Protection Agency, Office of
Pesticide Programs, CICAD Environmental and Human Health
Assessment of the Aerial Spray Program for Coca and Poppy
Control in Colombia (Ecological Effects Assessment) (26 Oct.
2005)
Annex 155 Inter-American Drug Abuse Control Commission (CICAD),
Interim Report on Follow-Up Studies: Environmental and Human
Health Assessment of the Aerial Spray Program for Coca and
Poppy Control in Colombia, (July 2006)
Annex 156 United States Department of State, Report to Congress: A
Preliminary Evaluation of the Risk Posed to Colombia’s
Amphibians and Threatened Species by the Government of
Colombia’s U.S.-Supported Program of Aerial Eradication of
Illicit Crops (Aug. 2006)
Annex 157 Ecuadorian Scientific Commission, The Plan Colombia Aerial
Spraying System and its Impacts on the Ecosystem and Health on
the Ecuadorian Border (April 2007)
Annex 158 Charles A. Menzie, PhD, Pieter N. Booth, MS & Susan B. Kane
Driscoll, PhD, with contributions/advice from Angelina J.
Duggan, PhD, Charlotte H. Edinboro, DVM, PhD, Anne
Fairbrother, DVM, PhD, Marion Joseph Fedoruk, MD, CIH,
DABT, FACMT, Janci Chunn Lindsay, PhD, Katherine
Palmquist, PhD & Brian J. Prince, MRQA, Evaluation of
Chemicals Used in Colombia's Aerial Spraying Program and
Hazards Presented to People, Plants, Animals, and the
Environment in Ecuador (Apr. 2009)
Annex 159 Inter-American Drug Abuse Control Commission (CICAD),
Second Phase Environmental and Human Health Assessment of
the Aerial Spray Program for Coca and Poppy Control in
Colombia (date unknown)
Annex 160 Charles S. Helling & Mary J. Camp, United States Department of
Agriculture, Verifying Coca Eradication Effectiveness in
Colombia (date unknown)
428 VOLUME IV
VERIFICATION AND OBSERVATION MISSION REPORTS
Annex 161 Accion Ecologica, Report on the Investigation of the
Fumigations’ Impacts on the Ecuadorian Border (June 2001)
Annex 162 Confederation of Indigenous Nationalities of Ecuador (CONAIE)
et al., Technical Report of the International Commission on the
Impacts in Ecuadorian Territory of Aerial Fumigations in
Colombia (19-22 July 2001)
Annex 163 Republic of Ecuador, Ministry of Environment, Joint Report from
the Workshop: Eradication of Illicit Crops,Bogotá, Colombia
(13-15 Feb. 2002)
Annex 164 Jim Oldham & Rachel Massey, Health and Environmental Effects
of Herbicide Spray Campaigns in Colombia , The Institute for
Science & Interdisciplinary Studies (18 Mar. 2002)
Annex 165 Association of American Jurists et al.,Report on Verification
Mission: Impacts in Ecuador of Fumigations in Putumayo as
Part of Plan Colombia (Oct. 2002)
Annex 166 Ecuadorian Ministry of Environment et al.,Impacts in Ecuador
by the Fumigations Carried Out in the Putumayo Department
under Plan Colombia (July 2003)
Annex 167 National Congress of the Republic of Ecuador, Commission for
Health, Environment, and Ecological Protection, Congressman
Miguel López Moreno, Report of the Visit to Communities on the
Border Cordon of the Province of Sucumbíos (12-15 Dec. 2003)
Annex 168 Interamerican Association for Environmental Defense (AIDA),
The Plan Colombia Aerial Eradication Program for Illicit crops
– An analysis of the 2003 Dept of State Certification to Congress
(25 Feb. 2004)
Annex 169 FIDH et al., Observations of the International Mission in the
Ecuadorian Border with Colombia (20-22 June 2005)
Annex 170 Interamerican Association for Environmental Defense et al.,
Ecolex and AIDA Environmental Report on the Impacts of the
Fumigations under Plan Colombia (Nov. 2005)
429Annex 171 Marcella Ceballos and Carlos Duarte, Report of the Observation
Mission on the Human Rights Situation in Lower Putumayo (June
2008)
PRESS REPORTS AND PRESS RELEASES
Annex 172 Tim Johnson, “U.S. Seeks to Test Fungus That Kills Coca”, T
MIAMI HERALD (Miami, 3 July 2000)
Annex 173 “Fumigation with Fungus Confirmed”,AH ORA (Quito, 23 Aug.
2000)
Annex 174 Antony Barnett & Solomon Hughes, “ICI Pulls Out of Cocaine
War”, TE O BSERVER (London, 1 July 2001)
Annex 175 “Colombia: Spraying Suspended”, BBC (26 June 2003)
Annex 176 Ministry of Foreign Affairs of Colombia, Press Release,
Memorandum of Understanding is signed for the study of the
effects of the fumigation of illicit crops (13 Feb. 2004)
Annex 177 “Parra Gil Demanded Colombia’s Compliance With Agreements
From Barco,” EU NIVERSO (Guayaquil, 25 July 2005)
Annex 178 “Imperturbable, Barco Listened to ParrL,COMERCIO (Quito,
26 July 2005)
Annex 179 Ministry of Foreign Affairs of Ecuador, Press Release No. 1121,
Ecuador Presents Protest Note to Colombia over the Resumption
of Fumigations (15 Dec. 2006)
Annex 180 “Agreement with Colombia does not exclude possible claims for
damages caused: Correa”, EOMERCIO (Quito, 11 Jan. 2007)
Annex 181 “Correa and Uribe reach an agreementLC OMERCIO (Quito, 11
Jan. 2007)
Annex 182 “For Colombia, Ecuadorian Position on the Lawsuit in The
Hague is Absurd”, EU NIVERSO(Guayaquil, 11 July 2007)
Annex 183 Ministry of Foreign Affairs of Ecuador, Press Release No. 040,
Bilateral Progress in the Meeting Between the Foreign Ministers
of Ecuador and Colombia (19 Jan. 2007)
Annex 184 “Ecuador will remain an associated member State with
Mercosur”, EC OMERCIO (Quito, 20 Jan. 2007)
430Annex 185 U.N. Press Release, “U.N. Special Rapporteur on the Right to the
Highest Attainable Standard of Health, Paul Hunt, Ends Visit to
Ecuador” (18 May 2007)
Annex 186 Ministry of Foreign Affairs of Ecuador, Press Release No. 547,
Ecuador Expresses Surprise at Declarations of High-Ranking
Colombian Official (12 July 2007)
WITNESS DECLARATIONS
Annex 187 Declaration of María Blanca Chancosa Sánchez, 14 Jan. 2009
Annex 188 Declaration of Dino Juan Sánchez Quishpe, 15 Jan. 2009
Annex 189 Declaration of Witness 1, 16 Jan. 2009
Annex 190 Declaration of Witness 2, 16 Jan. 2009
Annex 191 Declaration of Witness 3, 17 Jan. 2009
Annex 192 Declaration of Witness 4, 22 Dec. 2008
Annex 193 Declaration of Witness 5, 16 Jan. 2009
Annex 194 Declaration of Witness 6, 16 Jan. 2009
Annex 195 Declaration of Witness 7, 16 Jan. 2009
Annex 196 Declaration of Witness 8, 16 Jan. 2009
Annex 197 Declaration of Witness 9, 16 Jan. 2009
Annex 198 Declaration of Witness 10, 16 Jan. 2009
Annex 199 Declaration of Witness 11, 16 Jan. 2009
Annex 200 Declaration of Witness 12, 16 Jan. 2009
Annex 201 Declaration of Witness 13, 15 Jan. 2009
Annex 202 Declaration of Witness 14, 17 Jan. 2009
Annex 203 Declaration of Witness 17, 16 Jan. 2009
Annex 204 Declaration of Witness 18, 15 Jan. 2009
Annex 205 Declaration of Witness 19, 17 Jan. 2009
Annex 206 Declaration of Witness 20, 16 Jan. 2009
Annex 207 Declaration of Witness 21, 16 Jan. 2009
Annex 208 Declaration of Witness 22, 16 Jan. 2009
431Annex 209 Declaration of Witness 23, 16 Jan. 2009
Annex 210 Declaration of Witness 26, 17 Feb. 2009
Annex 211 Declaration of Witness 27, 17 Feb. 2009
Annex 212 Declaration of Witness 28, 17 Feb. 2009
Annex 213 Declaration of Witness 29, 16 Jan. 2009
Annex 214 Declaration of Witness 30, 19 Feb. 2009
Annex 215 Declaration of Witness 31, 27 Feb. 2009
Annex 216 Declaration of Witness 32, 19 Feb. 2009
Annex 217 Declaration of Witness 33, 19 Feb. 2009
Annex 218 Declaration of Witness 34, 19 Feb. 2009
Annex 219 Declaration of Witness 36, 19 Feb. 2009
Annex 220 Declaration of Witness 37, 19 Feb. 2009
Annex 221 Declaration of Witness 38, 19 Feb. 2009
Annex 222 Declaration of Witness 39, 19 Feb. 2009
Annex 223 Declaration of Witness 40, 20 Feb. 2009
Annex 224 Declaration of Witness 41, 20 Feb. 2009
Annex 225 Declaration of Colombia Witness 1, 20 Feb. 2009
Annex 226 Declaration of Colombia Witness 2, 20 Feb. 2009
Annex 227 Declaration of Colombia Witness 3, 20 Feb. 2009
Annex 228 Declaration of Colombia Witness 4, 20 Feb. 2009
Annex 229 Declaration of Colombia Witness 5, 20 Feb. 2009
Annex 230 Declaration of Colombia Witness 6, 20 Feb. 2009
Annex 231 Declaration of Colombia Witness 8, 4 Mar. 2009
Annex 232 Declaration of Colombia Witness 9, 5 Mar. 2009
Annex 233 Declaration of Colombia Witness 10, 5 Mar. 2009
432 OTHER
Annex 234 National Institute of Statistics and Censuses (INEC)Data on
Running Water (2001)
Annex 235 National Government of the Republic of Ecuador, “Plan
Ecuador,” Section 3, Table 2 (citing INEC, ENEMDU 2005;
Census of Population and Housing 2001, ODNA)
Annex 236 World Wildlife Fund, “Letter from World Wildlife Fund
Regarding Herbicide Spraying in Colombia” (21 Nov. 2001)
Annex 237 Letter from Victor Mestanza to Roger Mera, Regional Chief
Sucumbíos-Orellana, Ministry of the Environment (14 Oct. 2002)
Annex 238 Colombian and Ecuadorian Ministries of Foreign Affairs,
Integration Zone for the Colombian-Ecuadorian Border:
Binational Characterization Study (Sep. 2003)
Annex 239 Consuelo Ahumado Beltrán and Alvaro Moreno Durán,
"Priorities of the New World Order and Forced Displacement of
Colombians towards Ecuador," Cadernos PROLAM/USP, Year 3,
Vol. 1 (2004)
Annex 240 Richard E. Bilsborrow and CEPAR, The Living Conditions of
Refugees, Asylum-seekers and other Colombians in Ecuador ,
Ecuador Country Report (Oct. 2006)
Annex 241 United States Department of State, International Narcotics
Control Strategy Report (2008)
Annex 242 United States Government Accountability Office, Plan
Colombia: Drug Reduction Goals Were Not Fully Met, but
Security Has Improved; U.S. Agencies Need More Detailed Plans
for Reducing Assistance (Oct. 2008)
Annex 243 World Resource Institute, “Biodiversity and Protected Areas –
Ecuador”
Annex 244 World Resource Institute, “Biodiversity and Protected Areas –
United Kingdom”
433 SUPPLEMENTAL ANNEX
Annex 245 Republic of Colombia, Ministry of the EnvironmeResolution
No. 1054 , Whereby an Environmental Management Plan is
Modified and Other Decisions are Made (30 Sep. 2003)
434 LIST OF MAPS, FIGURES, PHOTOGRAPHS AND ILLUSTRATIONS
MAPS AND SKETCH MAPS PAGE
Sketch Map 1: Border Provinces in Ecuador and Colombia 23
Sketch Map 2: Ecuador-Colombia Border River Systems 24
Sketch Map 3: Location of Protected Areas in Northern Ecuador 28
Sketch Map 4: Location of Indigenous Populations in Ecuador 30
Map 5: [UNODC] Aerial spraying and coca cultivation in Colombia, 192
2006
Map 6: [UNODC] Aerial spraying and coca cultivation in Colombia, 196
2005
Map 7: [UNODC] Aerial spraying and coca cultivation in Colombia, 200
2004
FIGURES, PHOTOGRAPHS AND ILLUSTRATIONS PAGE
Photograph: Aerial Spraying over Colombian Coca Fields 38
Chart: Aerial Spraying of Coca Crops in Colombia (Ha.) (2000-2007)41
Chart: Aerial Spraying of Coca Crops in Putumayo and Nariño, 41
Colombia (Ha.) (2000-2007)
Warning Pictograms from Ecuador Ranger 480 Label 139
Photograph: Preparing the spray mixture at an air base in Colombia141
protective equipment worn by mixer-loaders
Andean Technical Manual Explanation of Warning Pictogram on 145
Ecuador Ranger 480 Label
Warning Pictogram from Colombia Roundup SL Label 147
Warning Pictogram from United Kingdom Glyphosate 360 Label 151
436Sketch by an Ecuadorian child following sprayings along the Putumayo- 189
Sucumbíos border in late 2000 and early 2001
437
Memorial of Ecuador