A Voice For the Voiceless

MISSION

The Advocacy Project seeks to help community-based advocates produce, disseminate and use information, and so become more effective advocates for human rights and social justice

Legal Issues: The Right to Consultation and the Texaco Lawsuit

 The destruction caused by the dangerous practices of Texaco and other companies took place because the Ecuadorian government allowed it to happen.

Early laws concerning the environment were rudimentary, simply requiring oil companies to "prevent pollution." Texaco’s contract required it to "prevent contamination of water, air, and soil." No specific standards were set. Subsequent laws were intended to tighten control over pollution, but oil companies, including the state-owned Petroecuador, made a practice of circumventing them. For example, a 1981 law that established environmentally protected zones was interpreted as permitting the extraction of subsoil minerals.

Whenever the oil industry flouted the weak environmental laws, courts and other governmental bodies failed to act to curtail this behavior. Agencies created to protect the environment have also proved useless. And a fundamental problem has been that citizens in the Oriente have had no access to information that would help them fight the polluting practices of the oil companies in Ecuadorian courts.

The new OCP pipeline is an example of the government’s disregard for environmental protection laws. The Ecuadorian Constitution calls for consultation with indigenous communities over projects that will affect the environment of their homelands. However, the pipeline project was forced through without allowing affected communities to voice their concerns.

International laws regarding the indigenous rights strongly reinforce the requirement for consultation with affected indigenous peoples. Prominent among these laws is the International Labor Organization’s 1989 Indigenous and Tribal Peoples Convention, known as ILO 169.

This treaty, which was ratified by Ecuador in 1998, refers specifically to the right of indigenous populations to be consulted over decisions that affect them, particularly those pertaining to the exploitation of natural resources in their land. It specifies that "the peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives..."

At first sight, this appears to conflict with a clause in the Ecuadorian constitution (article 247) that acknowledges the state's ownership of natural resources under the soil. But Article 15 of ILO 169 notes that where the State retains control over subsoil resources, governments must consult with affected populations to determine what impact exploitation of such resources may have. In addition, the Constitution says that all subsoil resources are to be exploited in the national interest.

These provisions clearly require the Ecuadorian government to develop a joint consensus with the indigenous inhabitants before any exploitation of oil takes place in their territory. Instead, up to now, the government and companies have taken the unilateral decision that the "national interest" mean simply pumping more and more oil out of the ground at the expense of the Amazon. This takes precedence at every turn over all other laws and covenants, and indeed, over public safety.

Although the state of Ecuador owns the oil, one important recent legal finding suggests that indigenous people have the right under international law to veto any exploitation without their consent. A recent decision of the Inter-American Court of Human Rights (Sept. 17, 2001) ruled that the government of Nicaragua violated the rights of the Awas Tingni community when it granted concessions to a private company to log on the community's traditional lands without consulting with the community or obtaining its consent.

This is the first binding decision that holds that indigenous peoples have communal property rights to land and natural resources based upon traditional patterns of use and occupation. Ecuador is a state party to the American Convention on Human Rights, on which this decision was based, and the Nicaraguan ruling could prove a critically important legal precedent for Ecuadorian activists and their allies.

The Lawsuit against Texaco

In 1993, attorneys initiated a legal action to in response to the violations. Representing 30,000 Ecuadorians who live in the northern Oriente, they filed a class-action lawsuit against Texaco in a New York federal court.

The lawsuit seeks damages for Texaco’s environmental destruction of the rain forest and of the health and livelihood of the people who live in it. Attorney Cristobal Bonifaz, formerly a chemical engineer, described the destruction as an "apocalyptic environmental nightmare unlike any the rainforest has ever seen."

The suit calls for three main actions to correct the wrongs committed by Texaco: the cleanup of contamination in the Oriente; replacement of inferior and obsolete oil production technology with modern equipment; and compensation for the victims of the pollution. The cost of cleanup alone is estimated at six hundred million dollars. Together with compensation costs and punitive damages, if the case wins in court Texaco is likely to be fined more than one billion dollars.

The lawsuit was filed under the US 1789 Alien Tort Claims Act (ATCA). This Federal law allows crimes that have been committed on foreign soil to be prosecuted in a US court, if either the victim or the defendant is located in the United States.

Ecuadorian activists chose to press the case so far from home because New York, home of Texaco’s international headquarters, was where the company made the decisions that destroyed so much of the Amazon. Furthermore, if the case is sent back to Ecuador, it will be tried in an antiquated system that does not recognize class action suits, and whose enforcement powers are minimal.

The Ecuadorian government, through the state oil company Petroecuador, collaborated with Texaco. As such it bears some of the responsibility for the damage. But it was Texaco that built the wells and refineries, trained local technicians, and proceeded to employ negligent environmental practices that would be illegal in any developed country.

If this case can be won, it would provide a powerful human rights precedent and boost many other similar campaigns. Texaco has successfully stalled the lawsuit for more than eight years. In the spring of 2002, it appears that there will finally be movement in the US Court of Appeals.

The Center for Economic and Social Rights, the Amazon Defense Front and other concerned organizations continue to monitor the case. Meanwhile, "Texacontamination" continues to this day.

• For more information see the Texaco Rainforest website.