A Lost Opportunity for Environmental Law

Hannah Marshall

JF Law and Politics | Junior Editorial Board

Download a PDF of this article here.


Introduction

The case of Ecuador v Colombia,[1] known generally as the Aerial Herbicide Spraying Case, was eagerly awaited as a decision which would either “challenge an international drug ring that has terrorized Colombia for decades, or address human rights and environmental issues presented from a neighbouring state.”[2] Ultimately, however, what was hoped would be a strong judgement by the International Court of Justice (ICJ) was not to be: the case was removed from the ICJ’s list on 9 September 2013 following a settlement agreement between both states, involving a ten kilometre no-spray buffer zone along the Ecuadorian-Colombian border.[3] This article will first outline the background and international agreements allowing Ecuador to initiate proceedings in the Aerial Herbicide Spraying Case, followed by a brief review of the existing decisions of the ICJ on international environmental law. It will be argued that, though the withdrawal of the case may be seen as a win for Ecuador in coming to a speedy resolution of its claim and in receiving monetary compensation from Colombia, it may also be viewed as a lost opportunity for international environmental law.

I.  Background

Colombia has been engaged in efforts to combat and eradicate illicit coca crops[4] for decades.[5] In order to understand the position of Ecuador and Colombia on aerial herbicide spraying, it is important to put the case into context. The political situation in Colombia involves a number of dominant guerrilla groups fighting for economic, social and political power, one of which is the Revolutionary Armed Forces of Colombia (FARC).[6] The FARC obtains substantial funding by taxing farmers growing illicit narcotic crops. Colombia has long been one of the world’s primary producers of coca and poppy, and in 2008, more than 55% of the world’s coca was being grown in Colombia.[7] Although Colombia has been using aerial herbicide spraying since the 1980s, large-scale aerial fumigation began in 2000 under the US funded “Plan Colombia”[8], in order to stem the flow of finance to guerrilla groups like the FARC. The aerial herbicide spraying is concentrated in the southwest regions of Putumayo and Nariño, which have borders with Ecuador’s northern provinces of Esmeraldas, Carchi and Sucumbíos, which are home to the Awá indigenous population.

Ecuador complained that the herbicide drifted into Ecuadorian territory, with the aircrafts flying into Ecuadorian air space on several occasions causing “serious damage to people, to crops, to animals, and to the natural environment, [posing] a grave risk of further damage over time.”[9] As a result, Ecuador seized the ICJ of the case against Colombia on March 28 2008, requesting a judgment to the effect that:

Colombia has violated its obligations under international law…Colombia shall indemnify Ecuador for any loss or damage caused by its internationally unlawful acts…and Colombia shall prohibit the use, by means of aerial dispersion, of such herbicide in Ecuador, or on or near any part of its border.[10]

Shortly after the aerial herbicide sprayings began in 2000, numerous cases of people suffering from skin and eye problems, nausea, fevers and further medical conditions, were reported in the communities of Carchi, Esmeraldas and Sucumbíos. Additional damage to crops, which are the communities’ main food source, and animals was also reported.[11]

The Colombian government have refused to provide Ecuador with the exact ingredients or composition of the herbicide in question, although they have disclosed the primary ingredient as glyphosate.[12] Glyphosate is a non-selective herbicide which kills any plant or crop it comes into contact with by inhibiting the plant’s ability to produce essential amino acids for survival.[13]

Ecuador had made repeated efforts to negotiate with Colombia on the issue of aerial herbicide spraying and its effects in Ecuadorian territory. There were several attempts to come to an agreement from the Ecuadorian side that were repeatedly refused by Colombia.[14] These attempts began in 2000, immediately after the beginning of the spraying.[15] They include requests for information regarding the composition of the herbicide, request for notification from Colombia prior to spraying, a request for manual spraying, a meeting to evaluate the effects, and a request for a ten kilometre exclusion zone at the border.[16] Each of these attempts was met with either a refusal or no response.[17]

II.  The Legal Grounds for Initiating Proceedings

The legal documents that Ecuador relied upon to establish the jurisdiction of the ICJ in this case included the Statute of the International Court of Justice 1945, the American Treaty on Pacific Settlement 1948, and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances.[18]

Article 36(1) of the Statute of the International Court of Justice provides that “[t]he 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.”

Ecuador relied further on Article XXXI of the American Treaty on Pacific Settlement, (the Pact of Bogotá), which 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 ispo 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 obligation.

Article XXXI of the Treaty provides also for jurisdiction of the International Court of Justice in “any question of international law” and one in which “the existence of any fact which, if established, would constitute the breach of an international obligation.”

Ecuador also referred to Article 32 of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as a basis for the jurisdiction of the International Court of Justice, which states that any dispute between parties which cannot be settled by “negotiation, enquiry, mediation, conciliation, arbitration, recourse to regional bodies, judicial process or other peaceful means of their own choice” shall be brought to the International Court of Justice by either of the disputing parties. Based on the above provisions, Ecuador succeeded in establishing the jurisdiction of the ICJ in the Aerial Herbicide Spraying Case. The jurisdiction of the Court was not challenged by Colombia.[19]

III.  International Decisions on International Environmental Law

The war on drugs is inextricably linked with environmental issues. This is highlighted by Article 14(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, which provides that any action taken by States to combat the growth and cultivation of illicit narcotic crops must “respect fundamental human rights…and the protection of the environment.” Determining the exact extent to which international environmental law must be taken into account by states engaging in measures to combat trade in illicit narcotic crops on their territory is not helped by the fact that international environmental law is comprised of “a haphazard collection of treaties, customary law, and general principles that have developed over time.”[20] It is therefore difficult to clearly identify the obligations on states in relation to environmental protection or preservation, and states are “arguably not bound by many of the requirements.”[21] The following section aims therefore to provide a brief overview of the area.

The first important development in international environmental law was made in the Trail Smelter Case[22], which confirmed that transboundary environmental harm was under the jurisdiction of the ICJ. It was the first case before the ICJ in which a State was held legally responsible for causing transboundary harm:

[N]o State has the right to use or permit the use of its territory in such a manner as to cause injury… in or to the territory of another or of the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.[23]

Although the ICJ is not bound by its own previous decisions, the judgment of the Court in the Trail Smelter Case was followed in subsequent cases including the Corfu Channel Case[24] in which the Court’s view on respect for national sovereignty is emphasised: “[b]etween independent States, respect for territorial sovereignty is an essential foundation of international relations.”[25]

The boundaries of international environmental law were further developed in the Advisory Opinion of the ICJ on “Legality on the Threat or Use of Nuclear Weapons”, where it was asserted 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 now part of the corpus of international law relating to the environment.[26]

This recognition of customary international law as including the “prevention of transboundary harm arising from hazardous activities”[27]was confirmed in the  Gabčikovo-Nagymaros case.[28]

Finally, the Pulp Mills Case[29] was an important development in international environmental law, as it established that States have an obligation to inform, notify and cooperate on environmental matters “grounded in principles of prevention and due diligence.”[30] This principle is especially important in the analysis of the Aerial Herbicide Spraying Case, as, in applying this principle, Colombia would have had a duty to notify Ecuador of the possible damage the aerial herbicide spraying could cause, something Colombia failed to do on several occasions from 2000 to 2007. The Pulp Mills Case also developed and strengthened the principle that States must not only refrain from causing transboundary harm, but also use “all means at their disposal”[31] to avoid it.[32]

IV. The Withdrawal of the Aerial Herbicide Spraying Case: a missed opportunity?

The Aerial Herbicide Spraying Case was withdrawn from the list of the ICJ by Ecuador following an agreement reached by both parties. Colombia  did not officially admit liability, but agreed to pay fifteen million dollars to Ecuador with the aim of stimulating economic activity in the border areas of Ecuador. Further, a ten-kilometre exclusion zone was set up at the Ecuador-Colombia border within which no aerial fumigation was to occur. The agreement also established a joint commission with the purpose of establishing that no herbicide would drift into Ecuador from Colombia from outside the exclusion zone. Based on the commission’s findings, the agreement allows for a gradual reduction in the area of the exclusion zone. The agreement fully and finally resolves all of Ecuador’s claims against Colombia.

This may be regarded as a win for Ecuador. But what would the outcome have been had the case proceeded before the ICJ? In this respect, it should be noted that Colombia neither prepared or delivered an Environmental Impact Assessment to Ecuador, nor did it not notify Ecuador prior to spraying. The State refused to inform Ecuador of the exact ingredients of the herbicide spray[33] and evidently did not use “all means at its disposal” to avoid transboundary environmental harm. This is clear in view of its choice of a non-selective herbicide, the fact that  its chosen dispersal method is recognised to be extremely inaccurate and imprecise, and considering the occasions upon which the aircrafts flew into Ecuadorian air space.[34] Because of this, it is submitted that it would have been very likely that, had the case proceeded, the Court would have found in favour of Ecuador, finding that Colombia had violated international law, and was therefore liable to Ecuador in damages.  Based on this, it is further submitted that the Aerial Herbicide Spraying Case would have developed and reaffirmed the principles outlined in the Pulp Mills Case. Because of the competing concerns demonstrated in the case between environmental and human rights protection on the one hand, and the necessity of facilitating the efforts of States to eradicate trade in illicit drugs on their territory on the other, the case had the potential to finally “clarify the issue of the level of environmental damage from atmospheric forms of pollution that is actionable under international law”[35] and thus become an instrumental precedent in the international environmental law jurisprudence of the ICJ. Further development of the scope of the necessity defence would also have been provided by a judgment in this case as an aspect of Colombia’s defence would likely have included that “the drug trade and guerilla activity created a situation of necessity that demanded a response and excused their procedural and substantive internationally wrongful acts.”[36]

Conclusion

Although the fact that an agreement was reached between Ecuador and Colombia is to be viewed positively, the issue remains that international environmental law is lacking in the domain of transboundary pollution and environmental harm. A judgement in the case would also have provided the ICJ with the chance to determine the priorities of international law in the choice between combatting the war on drugs or acting to prevent environmental harm and human rights violations arising from transboundary pollution. It is easily understood why Ecuador might have preferred to negotiate an agreement with Colombia out of court, in order to come to a speedy solution. However, had the ICJ had the opportunity to give judgement in the case, greater benefits may have been realised for the international community as a whole. The settlement itself may prove to be potentially problematic for Ecuador, as it provides the possibility of reducing the ten kilometre exclusion zone to two kilometres within two years.[37] This could see Ecuador essentially facing the same problems as they did ten years ago, rendering irrelevant any developments made to date. An ICJ judgment, by contrast, would have been binding upon both parties, and were Colombia to have failed to comply with the judgment, Ecuador could have had recourse to the United Nations Security Council for the enforcement of the judgment.[38] In the absence of a judgment, this option is closed to Ecuador and they ultimately have little option for recourse should Colombia fail to comply with the settlement. Though the resolution of the claim is of mutual benefit to both parties, it is arguable that the both Ecuador and the development of international environmental law generally would have benefited from the clarity and legal certainty  a written judgement by the ICJ would have  provided, if the  case had been allowed to proceed. For this reason, it is submitted that the withdrawal of the Aerial Herbicide Spraying Case from the ICJ’s list is to be viewed as a lost opportunity for international environmental law.

 

[1] Aerial Herbicide Spraying Case (Ecuador v Colombia) (Application Instituting Proceedings) Pleading, 2008 ICJ (31 March 2008) <http://www.icj-cij.org/docket/files/138/14474.pdf > (visited 9 January 2016) [hereinafter Application Instituting Proceedings].

[2] Jessica Rutledge, “Wait a Second – Is That Rain or Herbicide – The ICJ’s Potential Analysis in Aerial Herbicide Spraying and an Epic Choice Between The Environment and Human Rights” (2011) 46 Wake Forest L Rev 1079.

[3] Case removed from the Courts List at the request of the Republic of Ecuador (Ecuador v Columbia) Press release 2013/20 <http://www.icj-cij.org/docket/files/138/17526.pdf> (visited 9 March 2016).

[4] Cocaine is a naturally occurring alkaloid of the coca plant, synthesized from its leaves.

[5] Robert Esposito, “The ICJ and the Future of Transboundary Harm Disputes: A Preliminary Analysis of the Case Concerning Aerial Herbicide Spraying (Ecuador v Colombia)” (2010) 2 (1) Pace Int L Rev Online Companion 8.

[6] William D Shingleton, “Understanding Colombia” (2001) 25 Fletcher F World Aff  255, at 256.

[7] United Nations Office on Drugs and Crime, World Drug Report (2008), EM Vol II, Annex 26 at 13.

[8] For an overview, see Plan Columbia, Bogotá Columbia – Embassy of the United States < http://bogota.usembassy.gov/plancolombia.html> (visited 9 March 2016).

[9] Application Instituting Proceedings, note 1, at [4].

[10] Ibid., at [26].

[11] Ibid., at [10].

[12] Ibid., at [14].

[13] Laurel Sherret, “Futility in Action: Coca Fumigation in Colombia” (2005) 35 Journal of Drug Issues 151.

[14] Diplomatic Note VRE 32759, sent from the Ministry of Foreign Affairs of Colombia to the Embassy of Ecuador in Bogotá (23 Sep 2003), Memorial of Ecuador, Vol. II, Annex 48 <http://www.icj-cij.org/docket/files/138/17542.pdf> (visited 9 March 2016).

[15] Diplomatic Note 12437-47 SP/DGA/DTANC, sent from the Ministry of Foreign Affairs of Ecuador to the Embassy of Colombia in Quito (24 July 2000), Memorial of Ecuador, Vol. II, Annex 36, <http://www.icj-cij.org/docket/files/138/17542.pdf> (visited 9 March 2016).

[16] 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, Memorial of Ecuador, Vol. II, Annex 41 <http://www.icj-cij.org/docket/files/138/17542.pdf > (visited 9 March 2016).

[17] Application Instituting Proceedings, note 1, at [22].

[18] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988.

[19] Reply of Ecuador (Ecuador v. Colombia) January 2011, Vol I, at [1.16] <http://www.icj-cij.org/docket/files/138/17554.pdf> (visited 9 March 2016).

[20] Rutledge, note 2, at 1083.

[21] Ibid.

[22] Trail Smelter Arbitration (United States v Canada) 3 RIAA 1905 at 1941.

[23] Ibid., at 1965.

[24] Corfu Channel case (United Kingdom v Albania) (Judgment) [1949] ICJ Rep 4.

[25]Ibid., at 35.

[26] Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, at 242.

[27] Paola Solano, “Colombia Herbicide Spraying in the Crucible Between Indigenous Rights, Environmental Law and State Security” (2014) 9 Intercultural Human Rights L Rev 271, at 289.

[28] Gabčikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7.

[29] Pulp Mills on the River Uruguay (Argentina v Uruguay), (Judgment) [2010] ICJ Rep14

[30] Rutledge, note 2, at 1095.

[31] Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 14  at 56.

[32] Rutledge, note 2, at 1095.

[33] Memorial of Ecuador (Ecuador v Colombia), April 2009, Vol. 1, at [2.38], <http://www.icj-cij.org/docket/files/138/17540.pdf> (visited 12 March 2016).

[34] Solano, note 27, at 302.

[35] Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd ed., Cambridge University Press, 2012), at 242.

[36] Rutledge, note 2, at 1110.

[37] Agreement between the Republic of Ecuador and the Republic of Colombia, 9 September 2013, <http://cdn.ipsnoticias.net/wp-content/uploads/2013/10/Acuerdo-glifosato-Ecuador-Colombia.pdf> (visited 14 March 2016).

[38]Article 94 (2), Charter of the United Nations.

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