THE HUMAN RIGHTS SITUATION OF THE INHABITANTS OF THE INTERIOR OF ECUADOR AFFECTED BY DEVELOPMENT ACTIVITIES
The interior of Ecuador, known as the Oriente, is home to approximately 500,000 inhabitants. It has been the home of indigenous peoples, including the Quichua, Shuar, Huaorani, Secoya, Siona, Shiwiar, Cofan and Achuar for hundreds of years. Over the last several decades, pursuant to the discovery of commercially viable oil deposits and the opening of roads, the area has become home to settlers who have relocated from the highlands and the coast.
The attention of the IACHR was first drawn to this region of Ecuador by the filing of a petition on behalf of the indigenous Huaorani people in 1990. The petitioners alleged that the most basic human rights of the Huaorani were threatened by oil development activities about to commence within their traditional lands, and sought that the Government be required to halt development activities in the concession area known as "Block 16." The complaint alleged that these activities threatened the physical and cultural survival of the Huaorani as an indigenous people. The fundamental harm alleged was that oil exploitation activities would contaminate the water, soil and air which form the physical environment of these communities, to the detriment of the health and lives of the inhabitants.
In studying the petition, and in reviewing information submitted by and gathered from other sources concerning the human rights conditions in the Oriente, the Commission determined that the situation as a whole merited further attention.(1) With respect to the Huaorani, in addition to Block 16, other concession areas within or adjacent to their traditional lands were slated for development, including Blocks 8, 9-13, 14, 17 and 22. Other sectors of the Oriente and other indigenous peoples, particularly the Cofan, Siona-Secoya and Quichua peoples, have been subjected to the full impact of oil development and production for up to several decades. Settlers who have come to the region more recently have also been affected by oil exploitation.
It was in this context that a delegation travelled to the Oriente during the Commission's on site visit to Ecuador. In Lago Agrio, the delegation met with representatives of the Shuar, Siona and Secoya peoples, as well as representatives of campesino organizations, the Carmelite Mission, and the Frente por la Defensa de la Amazonia. The delegation spoke with individuals as it travelled east to Dureño, and returned to Lago Agrio to head south to Shushufindi. Near Shushufindi, they met with members of the organization La Delicia and with representatives and residents of the settlement of La Primavera. From there they travelled to Coca, and held a series of meetings, principally with representatives of the Huaorani and Quichua peoples, as well as with representatives of the Capuchin Mission, the Rainforest Information Center and the Sierra Club Legal Defense Fund. Additionally, the Commission met in Quito with a range of Government officials whose responsibilities bear on questions relevant to the interior, including the Minister of Mines and Energy and the Subsecretary for Indigenous and Afro-Ecuadorean Affairs, and with indigenous leaders and representatives of human rights and environmental groups.
This Chapter details the present situation in the Oriente, reviews the applicable legal regime, and sets forth the Commission's conclusions and recommendations.(2) The focus of this discussion is on the ability of the Oriente's inhabitants to realize their rights to life and physical security in an environment that has been subjected to severe environmental pollution. The information received and analyzed by the Commission, as well as the data and insights gathered during its on site observation, have largely substantiated the concerns voiced by the affected population, thereby prompting the recommendations which conclude this chapter.
The Situation in the Oriente
Ecuadorean law provides that all subsurface minerals are the property of the State. Consequently, the State exploits oil and mineral deposits, either directly through the state-owned oil company PetroEcuador, or indirectly, through concessions and service contracts with foreign oil companies.
The exploitation of oil resources in the Oriente since the 1960's, when commercially viable deposits were first discovered, has had a profound impact on the region and its people.(3) The north Oriente, comprising the provinces of Napo and Sucumbios, has been most affected, as development activities were initially centralized there. However, the area available for oil and mineral development has gradually been expanded. New concessions have been established, and additional bidding rounds have been opened by the Government over the last several years.(4) Current Oriente operations involve, inter alia, over 300 producing wells, regional oil refineries, secondary pipelines, transfer lines and gas lines, and the network of roads that serves the industry.
The individuals and groups from whom the Commission has received information, both during and after its on site visit, represent both settler and indigenous communities. These inhabitants of oil development sectors have been unanimous in claiming that the operations generally, and the improper handling and disposal of toxic wastes in particular, have jeopardized their lives and health. They claim that oil exploitation activities taking place in or near their communities have contaminated the water they use for drinking, cooking and bathing, the soil they cultivate to produce their food, and the air they breathe. Residents of affected sectors indicated that their rivers, streams and groundwater were contaminated with crude oil and toxic production wastes released into the environment due to improper treatment and disposal of toxic wastes, collapsed or leaching waste pits, and oil spills. These are, in most cases, the only water sources available for drinking, cooking and bathing, as well as for the watering of livestock, domestic animals and wildlife. Residents of a number of communities complained that the air they breathe is contaminated when waste oil and gas are burned off without any kind of emission controls. Numerous people live and walk along roads which have been sprayed with waste crude, and complain that they are constantly exposed to this oil and oil-coated dust particles in the air.
The Commission was advised by representatives of communities near oil development sites that, as a result of exposure to contaminated water, soil and air, some of their members suffered from skin diseases, rashes, chronic infections and fevers, gastrointestinal problems, and that the children particularly suffered frequent bouts of diarrhea. CONFENIAE and the Unión de Promotores Populares de Salud de la Amazonia Ecuatoriana provided specific data comparing the health situation of communities adjacent to oil development sites with those further away.(5)
In addition, a number of people told the delegation that contamination of the physical environment was hindering their ability to feed their families. The Commission has received reports that the pollution of local rivers, streams and lakes has contaminated the fish residents depend on as a dietary staple, and that development activities and contamination have driven away the wildlife they hunt as an important source of protein. In a number of instances, separation stations, exploratory or production wells, and waste pits are located immediately adjacent to or even within local communities. Many facilities, including those the Commission observed, are not fenced in or otherwise secured. Settlers reported that animals they raise to eat and to sell had become sick from drinking contaminated water, or had died after drinking from or becoming trapped in local waste pits. In several cases, the Commission received reports from settlers who had lost animals, fields or crops due to oil spills which had spread onto their land.(6)
The inhabitants allege that the Government has failed to regulate and supervise the activities of both the state-owned oil company and of its licensee companies. They further allege that the companies take few if any measures to protect the affected population, and refuse to implement environmental controls or to utilize existing technologies employed in other countries. Those who spoke before the delegation indicated that the Government had failed to ensure that oil exploitation activities were conducted in compliance with existing legal and policy requirements. Throughout its travels in the Oriente, the delegation received claims that the Government of Ecuador has violated and continues to violate the constitutionally protected rights of the inhabitants of the region to life and to live in an environment free from contamination.
Oil development and exploitation do, in fact, alter the physical environment and generate a substantial quantity of toxic byproducts and waste. Oil development activities include the cutting of trails through the jungle and seismic blasting. Substantial tracts of land must be deforested in order to construct roads and build landing facilities to bring in workers and equipment. Installations are built, and exploratory and production wells drilled. Oil exploitation then generates byproducts and toxic wastes through each stage of operations: exploratory drilling, production, transportation and refining.
Reports have only recently begun to document how these toxic byproducts have been dealt with. Waste products generated by exploratory drilling(7) have reportedly been disposed of in open pits, which may overflow and spill into rivers, streams and groundwater. Other wastes have reportedly been disposed of in buried pits, which, without proper lining or capping may leach into the environment.(8) Waste oil from the testing process has, in some cases, reportedly been burned off without temperature or environmental controls.(9)
In the production phase, oil extracted from wells is pumped to separation stations.(10) Drilling and produced water wastes have generally been collected in waste pits at well sites and separation stations, although some operations have recently begun efforts to reinject a percentage of such wastes. Waste pits have reportedly often been unlined, susceptible to collapse and to being washed out by heavy rains, and constructed so that when the contents reach a certain level they drain to lower-lying areas away from the pit. The contents of the waste pits, reportedly often left untreated, may eventually leach into adjacent soil and ground water. The Ministry of Energy and Mines reportedly estimated that some 19 billion gallons of these produced water wastes had "been dumped without treatment into the waters and soils of the Oriente" since 1972.(11) Drilling wastes vary from site to site, but typically may contain such toxins as arsenic, lead, mercury, benzene, napthalene and other hydrocarbons.(12) Some companies have sprayed waste crude oil over local roads, ostensibly to keep down the dust. The run off from the roads drains into adjacent fields, groundwater and streams.
Crude oil has also been released into the environment through spills in the production and transportation phases of operation, particularly through spills from the Trans-Ecuadorean Pipeline.(13) The Ecuadorean Government reported that, as of 1989, 30 different spills from the Trans-Ecuadorean pipeline had involved the release of a total of 16.8 million gallons of crude.(14) There have been a number of substantial spills in the interim, and ruptures in secondary pipelines have resulted in substantial additional discharge into the environment. An additional 1,000 to 2,000 gallons of oil reportedly spill from the flowlines connecting the wells to the stations every two weeks.(15) It has been estimated that since 1972, over "30 billion gallons of toxic wastes and crude oil have been discharged into the land and waterways of the Oriente."(16)
The Commission delegation which travelled from Lago Agrio to Coca visited five different oil production sites: Dureño One, Atacapi, Shushufindi North, a site adjacent to the Population Center of Primavera, and finally a site known as Pozo Nueve de Agua Rico. Some of the roads the delegation travelled over had been sprayed with crude oil. The productions sites observed appeared to vary in terms of functionality. In at least two of the sites, visibly impure production water was being discharged into adjacent tributaries on the day of the visit. At each of the sites it could be seen that the waste pits are constructed with pipes which allow for drainoff to lower lying areas when the contents reach a certain level. That these lower lying areas tend to lead to streams or rivers was clearly evidenced in the cases of the Shushufindi North and Pozo Nueve de Agua Rico sites.
At the site near Primavera, equipment was in place to evacuate crude and other heavy deposits from a portion of a large unlined waste pit. The Pozo Nueve de Agua Rico site consisted of one lined and a larger unlined waste pit. The Commission was met there by a company representative who explained that this site had already been subjected to an intensive clean up, and a certificate was produced attesting that the pool had been tested and the water found to be within acceptable contamination limits. Visual inspection indicated that the surface of both pits was covered with a film of oil. At the back of the larger unlined pit the delegation saw that a narrow channel had recently been dug. The channel was still separated from the pit by a strip of earth, but once that had been removed, the channel would have the effect of draining the pit into an area leading directly to a river.
At the Dureño One site, natural gas and other byproducts were being burned off by a flare some 20 feet off of the ground. At Shushufindi North, byproducts were being burned off from a pipe located at ground level directly over the first waste pit. At the Primavera and Pozo Nueve de Agua Rico sites, refuse soaked with crude was being incinerated in small open fires on the ground.
Government Action on the Issue of Oil Development
In recent years, the Government has taken certain legislative and policy measures to address the effects of oil development on the people and the environment of the Oriente. The September 1993 establishment of the Environmental Advisory Commission of the Presidency to coordinate action in this sphere led to the June 1994 issuance of Executive Decree 1802, entitled "Basic Environmental Policies of Ecuador,"(17) outlining national priorities in this area. During a meeting with the Commission, the Minister of Mines and Energy informed its members that, for almost a decade, companies interested in exploiting petroleum had been required to submit environmental impact and other plans.(18) Decree 1802 specifies that companies are required to prepare an Environmental Impact Study and a Program of Environmental Mitigation, as well as to seek the corresponding authorization prior to the initiation of activities which could degrade or contaminate the environment. The Development Plan adopted during the Durán-Ballén Administration calls for foreign companies to apply the highest standards and requirements of their home country in their operations in Ecuador, without prejudice to compliance with Ecuadorean law. As noted by the Government in its observations of March 19, 1997, the Environmental Advisory Commission was transformed into the Ministry of the Environment in August of 1996.(19)
Ecuadorean law provides certain protections against environmental pollution, including the Law for the Protection and Control of Environmental Contamination, concerning the protection of air, soil and water resources. Contamination which is harmful to human life, health and well-being, harmful to the flora and fauna, or which degrades air, water or soil quality is prohibited.(20) The 1981 Law of Forestry and Conservation of Natural Areas and Wildlife provides for the protection of designated national parks or natural reserves. Additional legislation speaks to oil exploitation operations, contractual requirements, and other aspects of environmental protection.(21) Notwithstanding the existence of an emerging corpus of environmental regulation, little implementation or enforcement action has been taken.(22)
Responsibility for action in this sphere has to date been decentralized. While the Ministry of Mines and Energy, through the DINAMA, bears principal responsibility for environmental matters, questions concerning health, water and water quality come within the jurisdiction of the Ministry of Health. The Instituto Ecuatoriano Forestal de Areas Naturales y Vida Silvestre is in charge of environmental protection zones and national parks. Processes to inform local communities about the effects of development would fall within the responsibility of the Public Relations Ministry. It seems likely that the recent establishment of the Ministry of the Environment will enhance coordination in this sphere.
One of the Government's most visible activities with respect to the effects of oil development has been its effort to ensure that Texaco finance and implement a plan to clean up areas that were contaminated during the company's twenty-plus years of operation in the Oriente. In the spring of 1992, after Texaco withdrew from its exploitation operations in Ecuador, the Government contracted for an environmental audit to assess the situation resulting from the company's operations. Based on the results of that process, the Government and Texaco signed a series of agreements in late 1994 and 1995 obliging the company to undertake certain activities to remedy the environmental consequences of its operations in the Oriente. These reportedly include clean up activities, revegetation efforts, and the establishment of a one million dollar fund to be used for projects developed by a particular indigenous federation and approved by Texaco and the Ministry of Mines and Energy.
The response of the affected communities has evidently been mixed. A number of communities have indicated their rejection of the audit and the agreements signed to date on the stated basis that: they were excluded from direct participation in the process, the agreement did not adequately repair the damages suffered, and the process failed to provide for any independent review or evaluation of the results.(23) The Confederation of Indigenous Nationalities of the Ecuadorean Amazon [CONFENIAE] communicated its rejection of the accords to the Minister of Mines and Energy at the end of 1995, indicating that the agreements failed to take into account "20 years of oil spills, deforestation [and] water contamination," failed to provide guarantees, and failed to address causes of ongoing contamination.(24) Some leaders indicated that they lacked sufficient information to take a position, while other communities welcomed the planned clean up activities as a positive step.
The Applicable Legal Framework
1. Relevant Domestic Law
The domestic law of Ecuador recognizes the relationship between the rights to life, physical security and integrity and the physical environment in which the individual lives. The first protection accorded under Article 19 of the Constitution of Ecuador, the section which establishes the rights of persons, is of the right to life and personal integrity. The second protection establishes "the right to live in an environment free from contamination." Accordingly, the Constitution invests the State with responsibility for ensuring the enjoyment of this right, and for establishing by law such restrictions on other rights and freedoms as are necessary to protect the environment. Thus, the Constitution establishes a hierarchy according to which protections which safeguard the right to a safe environment may have priority over other entitlements.
The amendments to the Constitution adopted in 1996 complement the foregoing protections. The new provisions set forth that the State will protect the right of the population to a safe environment and guarantee sustainable development. The Constitution now provides that the following shall be regulated by law: the preservation of the environment, ecosystems and biodiversity; the prevention of environmental contamination; the sustainable development of natural resources; the requirements that public and private activities affecting the environment must meet; and the establishment of a system of natural protected areas. These recent amendments also set forth the legal framework of state and individual responsibility for violations of norms to protect the environment.
Ecuador is Party to or has supported a number of instruments which recognize the critical connection between the sustenance of human life and the environment, including: the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights,(25) the ICCPR and the ICESCR, the Stockholm Declaration, the Treaty for Amazonian Cooperation,(26) the Amazon Declaration,(27) the World Charter for Nature,(28) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere,(29) the Rio Declaration on Environment and Development(30) and the Convention on Biological Diversity.(31)
2. Relevant Inter-American Law
The realization of the right to life, and to physical security and integrity is necessarily related to and in some ways dependent upon one's physical environment. Accordingly, where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.
The American Declaration of the Rights and Duties of Man, which continues to serve as a source of international obligation for all member states, recognizes the right to life, liberty and personal security in Article I, and reflects the interrelationship between the rights to life and health in Article XI, which provides for the preservation of the health and well being of the individual.(32) This priority concern for the life and physical preservation of the individual is reflected in the American Convention in Article 4, which guarantees the right to life, and Article 5, which guarantees the right to physical, mental and moral integrity.
The right to life recognized in Article 4 of the American Convention is, as noted in Chapter IV of this report, fundamental in the sense that it is nonderogable and constitutes the basis for the realization of all other rights. Article 4 protects an individual's right to have his or her life respected: "This right shall be protected by law .... [n]o one shall be arbitrarily deprived of his life." The right to have one's life respected is not, however, limited to protection against arbitrary killing. States Parties are required to take certain positive measures to safeguard life and physical integrity. Severe environmental pollution may pose a threat to human life and health, and in the appropriate case give rise to an obligation on the part of a state to take reasonable measures to prevent such risk, or the necessary measures to respond when persons have suffered injury.
The Commission recognizes that the right to development implies that each state has the freedom to exploit its natural resources, including through the granting of concessions and acceptance of international investment. However, the Commission considers that the absence of regulation, inappropriate regulation, or a lack of supervision in the application of extant norms may create serious problems with respect to the environment which translate into violations of human rights protected by the American Convention.
The Government stated in its observations on the present report that the environment had been damaged by deforestation, erosion, the over-exploitation of resources, and high levels of contamination from oil exploitation and mining. As has been recognized by the Government of Ecuador and numerous international observers, it is clear that the activities of the state-run oil company and the acts and omissions of licensee companies have resulted in severe environmental pollution. The Ministry of Mines and Energy has reported this in various figures and assessments it compiled (some of which are cited in this report), and the Government has acknowledged it as a factual matter, as, for example, in the series of remediation agreements signed with Texaco. The Executive policy directive of June, 1994 acknowledged that some entities performing oil exploitation activities have used sub-standard technology to the detriment of society and the environment. In July of 1994, a Commission of the National Congress, responding to and supporting the suit that had been filed by several indigenous groups against Texaco abroad, noted by resolution the serious injury to health and life sustained by the inhabitants of the affected sectors.(33)
Human exposure to oil and oil-related chemicals, through the skin or ingested in food or water, or through fumes absorbed via the respiratory system, has been widely documented to cause adverse effects to human health and life. In the instant case, emerging data indicates the considerable risk posed to human life and health by oil exploitation activities in the Oriente. The Unión de Promotores Populares de Salud de la Amazonia Ecuatoriana [UPPSAE] carried out a study in 1993 to gather specific data on the effects of oil exploitation on the health of settler communities.(34) The study examined 1,465 people in ten communities established by settlers around Dureno and Pacayacu in Sucumbios Province. 1,077 of the study subjects lived in oil-contaminated areas, and 388 in non-contaminated areas. There are five petroleum camps in the area. The results of the study indicated significantly higher rates of spontaneous abortion,(35) headache, nausea, anemia, dermatitis and fungal infection in the population exposed to oil.(36)
A representative of CONAIE reported that the organization had surveyed 21 communities along the Napo and Quinchiyacu Rivers affected by oil development activities, and had found that roughly three fourths of the community members complained of gastro-intestinal problems; half, of frequent headaches; a third of skin problems; and just under a third of other body aches and fevers. It was also noted that various studies done on the effects of oil contamination indicated that affected populations are at a greatly increased risk of cancer and other grave illnesses. The Director of the Coca Hospital has been cited as indicating an increase in infant mortality due to water contamination and accidents related to petroleum, and local health workers have reported a rise in birth defects, juvenile illnesses and skin infections.(37)
The Center for Economic and Social Rights, an NGO based in New York, conducted a project to collect and analyze water samples from development-affected sectors of the Oriente. The samples were taken from water used for drinking, bathing and fishing, and from produced water (from oil processing), and analyzed for levels of polycyclic aromatic hydrocarbons (linked to health effects ranging from skin irritation to cancer) and volatile organic compounds (which commonly include benzene and benzene derivatives linked to skin, nervous system and blood disorders, leukemia, and which may harm fetal development).(38) The study concluded that Oriente residents are exposed to levels of oil-related contaminants far in excess of internationally recognized guidelines, and that human ingestion of water or fish from the waters sampled poses a significantly increased risk of serious health effects including cancer, neurological and reproductive problems.(39)
Oil development activities have also been linked, directly and indirectly, with problems in food supply and malnutrition.(40) The sectors of Orellana, Shushufindi and Sacha, which are centers of petroleum development activity, register the highest indicators of malnutrition in Ecuador.(41) As stated in the preamble of the World Charter for Nature, adopted by the UN General Assembly in 1982: "Mankind is a part of nature and life depends on the uninterrupted functioning of natural systems which ensure the supply of energy and nutrients."
According to the Government's own figures, billions of gallons of untreated toxic wastes and oil have been discharged directly into the forests, fields and waterways of the Oriente.(42) The resulting consequences for the inhabitants of the affected areas have been and remain grave. The right to life and the protection of the physical integrity of the individual are norms of an imperative nature. Article 2 of the American Convention requires that where these rights are not adequately ensured through legislative and other means, the State must take the necessary corrective measures. Where the right to life, to health and to live in a healthy environment is already protected by law, the Convention requires that the law be effectively applied and enforced.
The information analyzed above on the impact of oil exploitation activities on the health and lives of the affected residents raises serious concern, and prompts the Commission to encourage the State of Ecuador to take the measures necessary to ensure that the acts of its agents, through the State-owned oil company, conform to its domestic and inter-American legal obligations. Moreover, the Commission encourages the State to take steps to prevent harm to affected individuals through the conduct of its licensees and private actors. The State of Ecuador must ensure that measures are in place to prevent and protect against the occurrence of environmental contamination which threatens the lives of the inhabitants of development sectors.(43) Where the right to life of Oriente residents has been infringed upon by environmental contamination, the Government is obliged to respond with appropriate measures of investigation and redress.(44)
The American Convention on Human Rights is premised on the principle that rights inhere in the individual simply by virtue of being human. Respect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being. Conditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.
In the context of the situation under study, protection of the right to life and physical integrity may best be advanced through measures to support and enhance the ability of individuals to safeguard and vindicate those rights. The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse.
Access to information is a prerequisite for public participation in decision-making and for individuals to be able to monitor and respond to public and private sector action. Individuals have a right to seek, receive and impart information and ideas of all kinds pursuant to Article 13 of the American Convention. Domestic law requires that parties seeking authorization for projects which may affect the environment provide environmental impact assessments and other specific information as a precondition. However, individuals in affected sectors have indicated that they lack even basic information about exploitation activities taking place locally, and about potential risks to their health. The Government should ensure that such information as the law in fact requires be submitted is readily accessible to potentially affected individuals.
Public participation in decision-making allows those whose interests are at stake to have a say in the processes which affect them. Public participation is linked to Article 23 of the American Convention, which provides that every citizen shall enjoy the right "to take part in the conduct of public affairs, directly or through freely chosen representatives," as well as to the right to receive and impart information. As acknowledged in Decree 1802, while environmental action requires the participation of all social sectors, some, such as women, young people, minorities and indigenous peoples, have not been able to directly participate in such processes for diverse historical reasons. Affected individuals should be able to be informed about and have input into the decisions which affect them.
The right to access judicial remedies is the fundamental guarantor of rights at the national level. Article 25 of the American Convention provides that "[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention...." This means that individuals must have access to judicial recourse to vindicate the rights to life, physical integrity and to live in a safe environment, all of which are expressly protected in the Constitution. Individuals and NGO's have indicated to the Commission that, for various reasons, judicial remedies have not proven an available or effective means for individuals threatened by environmental pollution to obtain redress.
The norms of the inter-American human rights system neither prevent nor discourage development; rather, they require that development take place under conditions that respect and ensure the human rights of the individuals affected. As set forth in the Declaration of Principles of the Summit of the Americas: "Social progress and economic prosperity can be sustained only if our people live in a healthy environment and our ecosystems and natural resources are managed carefully and responsibly."
As the Commission observed at the conclusion of its observation in loco: "Decontamination is needed to correct mistakes that ought never to have happened." Both the State and the companies conducting oil exploitation activities are responsible for such anomalies, and both should be responsible for correcting them. It is the duty of the State to ensure that they are corrected.
Given that it is the obligation of the State to respect and ensure the rights of the inhabitants of the Oriente, and the responsibility of the Government to implement the measures necessary to remedy the current situation and prevent future oil and oil-related contamination which would threaten the lives and health of these people, and having noted the concern expressed by some government officials over the seriousness and scope of this problem, the Commission recommends and encourages the State to adopt the measures necessary to translate this concern into preventive and remedial action.
The Commission recommends that the State continue and enhance its efforts to address the risks identified by the Ministry of Mines and Energy with respect to other development activities, such as gold mining being carried out in the Oriente, which poses a serious risk of contamination and danger to human health, due to the use by small-scale operators of unsophisticated methods involving mercury and cyanide.
The Commission recommends that the State implement the measures to ensure that all persons have the right to participate, individually and jointly, in the formulation of decisions which directly concern their environment. The Commission encourages the State to enhance its efforts to promote the inclusion of all social sectors in the decision-making processes which effect them.
Given that the American Convention requires that all individuals of the Oriente have access to effective judicial recourse to lodge claims alleging the violation of their rights under the Constitution and the American Convention, including claims concerning the right to life and to live in an environment free from contamination, the Commission recommends that the State take measures to ensure that access to justice is more fully afforded to the people of the interior.
Finally, as the right to participate in decision-making and the right to effective judicial recourse each require adequate access to information, the Commission recommends that the State take measures to improve systems to disseminate information about the issues which affect them, and to enhance the transparency of and opportunities for public input into processes affecting the inhabitants of development sectors.
1. The initial processing of the communications led the Commission to conclude that a number of the claims raised by the petitioners appeared to be prospective in nature. With this in mind, and given the already apparent indications that the situation complained of was not isolated to the Huaorani people, but appeared to have important bearing on the situation of many inhabitants of the region, the Commission determined that the situation should be treated within the framework of a general evaluation of the human rights situation in the area.
2. The situation in the Oriente with respect to oil exploitation has special implications for the indigenous peoples for whom the Amazon Basin has been home for ages beyond memory. These issues, which center around the right of indigenous peoples to special protection and preservation of their cultures, are dealt with in Chapter IX.
3. A consortium led by Texaco and Gulf first discovered commercially viable quantities of petroleum in the traditional lands of the Cofan people in 1967.
4. Pursuant to the seventh round of bidding for oil and gas production licensing, opened during the first half of 1994, foreign companies were awarded contracts to develop six additional blocks in the Oriente of 200,000 hectares each. See, Latin American Weekly Report, 10 February 1994, at 52; 23 June 1994, at 268. Three other blocks were opened for development along the Pacific coast, and additional blocks extending further south have been designated for an eighth round. Id. at 268.
5. This data is discussed, infra, in the section entitled "analysis."
6. Residents from the Canton of Shushufindi, members of the local Precooperativa, provided a list of the animals they had each lost over time for such reasons: "21 head of livestock;" "15 head of livestock;" "18 head of cattle;" "8 pigs, two horses, seven cows;" "15 pigs, two horses;" and "8 head of cattle, 11 pigs and hens." One resident living adjacent to the North Station presented the certificate of a veterinarian attesting to his eight dead cattle. Another community testified to similar losses in a meeting with the Commission.
7. It has been estimated that each exploratory well drilled "produces an average of 4,165 cubic meters of drilling wastes containing a mixture of drilling muds (used as lubricants and sealants), petroleum, natural gas, and formation water from deep below the earth's surface (containing hydrocarbons, heavy metals and high concentrations of salt)." Center for Economic and Social Rights [CESR], "Rights Violations on the Ecuadorean Amazon," 1 HEALTH & HUMAN RTS. 83, 84-85 (Fall, 1994), citing J. Kimerling, Amazon Crude (1991), which attributes the per well estimate to Drilling Department of Ecuador's National Directive of Hydrocarbons. Kimerling, at p. 59 n. 24.
8. J. Kimerling, supra at 61.
9. Id. at 59 (citing 1989 estimate by DINAMA that each exploratory well produces approximately 42,000 gallons of waste oil).
10. The oil is then separated from wastes comprised of formation water, oil remnants, gas and toxic chemicals. The vast majority of the natural gas which is separated from the petroleum is burned off as waste, without temperature or emission controls. Id. at 63 (noting that DINAMA was studying the advisability of reinjecting the gas for later reclamation); CESR, supra at 85.
11. J. Kimerling, supra, at 65. The produced water wastes also contain petroleum. It is estimated that "roughly 2,100 to 4,200 gallons of oil are discharged every day" as part of these wastes. Id. (citing Ministry of Mines and Energy, 1989).
One Government study involving 187 wells found that crude oil was systematically dumped into the forest, farmlands and various bodies of water. See, Fundación Natura, "Desarollo y Conservación en la Amazonia Ecuatoriana," at 13 (citing DIGAMA study of 1987). Another Government study which tested samples of water taken from streams and rivers near production sites found elevated levels of oil and grease in every sample, and concluded that oil development was linked to deterioration of both land and aquatic ecosystems. Kimerling, at 67, citing CEPE, "Analisis de la Contaminación Ambiental en los Campos Petroleros Libertador y Bermejo," 1987.
12. See, Kimerling, supra, at 59 (listing additional toxins).
13. The Texaco-Gulf consortium (see n. 3, supra) constructed the Trans-Ecuadorean Pipeline, completed in 1972. The pipeline, or Sistema del Oleoducto Trans-Ecuatoriano (SOTE) runs for just under 500 kilometers from Lago Agrio to Esmeraldas on the Pacific Coast.
14. Kimerling, supra at 69. The comparison often cited is to the 10.8 million gallon spill from the Exxon Valdez.
15. CESR, supra, at 85, citing sources including interviews with Minister of Energy and Mines and DINAMA personnel. See, Kimerling, supra, at 63 (citing DINAMA as source for data on spills from flowlines).
16. CESR, supra.
17. The documents entitled "Basic Principles for Environmental Action in Ecuador" and "Basic Environmental Policies of Ecuador" were approved in December 1993 and June of 1994, respectively. An "Ecuadorean Environmental Plan" was reportedly in development at the time of the Commission's visit.
18. The Minister further indicated that, since approximately 1988, development contracts with the Government had included clauses concerning the defense of the environment, and that agreements arising out of the seventh round would contain strong measures in this regard.
19. Until mid-1996, the Ministry of Energy and Mines had been tasked with environmental oversight through its Subsecretariat of the Environment and the Dirección Nacional de Medio Ambiente (DINAMA).
20. Law for the Prevention and Control of Environmental Contamination, Ch. I, para. 1, R.O. No. 97, May 31, 1976. Implementing regulations were passed concerning water in 1989, and for air in 1991. See e.g., Law of Waters, art. 22, R.O., No. 69, May 30, 1972; General Regulations for the Application of the Law of Waters, arts. 89-90, R.O., No. 233, Ja. 26, 1973.
21. See generally, Ministry of Energy & Mines and PetroEcuador, Environmental Legislation: Compilation of Laws, Regulations and Norms Related to the Environment and the Conservation of Nature, for the Hydrocarbon and Mining Sector, Sept. 1993.
22. In fact, Decree 1802 acknowledged that, while Ecuadorean law provided a sufficient theoretical framework for environmental action, compliance with extant regulations had been partial. The policy directive accordingly called for action to reinforce the effective and efficient application of the existing regulations.
Community and NGO representatives indicated that existing remedies have proven ineffectual in providing protection in this sphere, and referred to the filing of a claim before the Tribunal of Constitutional Guarantees in 1989 seeking to prevent the Government from authorizing oil exploitation in the Yasuni National Park. The Corporación de Investigaciones Juridico-Ecologicas y de Defensa de Vida (CORDAVI) had argued that the planned exploitation would violate the Constitutional right of the Park's inhabitants to live in a safe environment, and violate the Forestry Law's prohibition of exploitation in protected areas. The Tribunal's ruling of October 2, 1990 held that the right to live in a safe environment mandated that no further exploitation be permitted in protected areas. However, on October 31, 1990, the Tribunal issued a second opinion allowing the concessions, without having received filings from the parties and absent any explanation for the reversal.
23. It should be noted that members of the Cofan, Quichua and Secoya communities and settlers affected by Texaco's oil exploitation activities filed a class action suit against the company in federal district court in New York (the site of Texaco's headquarters), on November 3, 1993. This was closely followed by a second filing on behalf of a class of Peruvian plaintiffs seeking damages to remedy what they allege to be the downstream contamination caused by Texaco's operations in Ecuador. See, Aguinda v. Texaco, Complaint dated Nov. 3, 1993, No. 93 CIV. (S.D.N.Y.); Jota et al. v. Texaco, CIV., S.D.N.Y.
24. El Comercio, 27 de dic. de 1995, at C2.
25. Ecuador deposited its instrument of ratification on March 25, 1993. The Additional Protocol will enter into force upon the deposit of the eleventh ratification.
26. 17 I.L.M. 1045 (1978).
27. 28 I.L.M. 1303 (1989).
28. G.A. Res. 37/7, U.N. Doc. A/37/51 (1982).
29. 161 U.N.T.S. 229 (1940).
30. 31 I.L.M. 874 (1992).
31. 31 I.L.M. 818 (1992).
32. See, Article 29, American Convention, which specifies that "no provision of this Convention shall be interpreted as: ... d. excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have." See also, Advisory Opinion OC-10/89 of July 14, 1989 "Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Ser. A No. 10, para. 46.
33. Resolution of the National Congress "La Comisión de Fiscalización Frente a la Demanda de los Cofanes en Contra de la Texaco," de 4 de julio de 1994. The resolution affirmed the clear mandate of the Constitution to protect the right to live in an environment free from contamination, and recognized that this right had been subject to grave violation. The resolution cautioned that human life and health, as well as the Amazonian ecosystem had been endangered.
34. UPPSAE, Culturas Bañadas en Petroleo: Diagnóstico de salud realizado por promotores, 1993.
35. The study showed that women residing within 200 meters of oil contaminated sites experienced lower live birth rates than the same women had experienced when living in other areas of the country, and that women living within 200 meters of such sites had a higher rate of spontaneous abortion than women living more than 200 meters away from the sites. UPPSAE study, p. 56, fig. 22, 23.
36. Rates of anemia, tuberculosis and malnutrition were reported to be twice as high in areas designated as oil-contaminated. Skin infections were four times more likely in such areas. UPPSAE study, p. 61.
37. Hoy: Blanco y Negro, "La Calamidad Amazonica," No. 26, Domingo 23 de octubre de 1994, p. 2.
38. CESR, at 12-20. "Fingerprinting" analysis was used to link contamination in samples to specific sources. For example, "[f]ingerprinting analysis of hydrocarbon distribution indicated that the contamination source of drinking water samples from the San Pablo spring ... and Shushufindi well ... matches the PAH distribution found in produced water from the Shushufindi North Station." Id. at 18, app. VI(a).
39. Id. at 19-20.
40. See, UPPSAE study, at 53.
41. See, E. Martínez, "Indicadores sociales y culturales de los impactos producidos por la actividad petrolera," in, Acción Ecologica, Amazonia por La Vida 41, 43-44 (1994)(citing, M. Chiriboga, R. Landín and J. Borja, Los Cimientos de una Nueva Sociedad (IICA 1989); CEPAR, 1993).
42. It may also be noted that, in 1992, pursuant to the claim of the non-governmental organization CORDAVI, the International Water Tribunal [an independent forum funded by European environmental organizations of a non-governmental and governmental character] held a juried hearing on claims that Petroecuador, Texaco and City Investing were responsible for having contaminated water sources in the Oriente. The Tribunal (which exercises no legal jurisdiction in Ecuador) found that the companies had failed to take adequate precautionary measures in their exploitation processes; had discharged large amounts of hazardous wastes into the waters and soils of the Oriente; and should therefore compensate the victims. International Water Tribunal, CORDAVI v. Petroecuador, Texaco Petroleum and City Investing, Amsterdam, February 20, 1992.
43. See, "Yanomami Case," Res. No. 12/85 Case 7615, in Annual Report of the IACHR 1985-86, OEA/Ser.L/V/II.66, Doc. 10 rev. 1 (1985) (finding violation of Article XI of Declaration where Government failed to implement measures of "prior and adequate protection for the safety and health of the Yanomami Indians" against invasion of groups of garimpeiros).
44. While the Commission has analyzed the human rights situation in the Oriente through the example of oil exploitation activities, it must be noted that other types of development activities raise similar factual and legal concerns. One pertinent example concerns the effects of gold mining in the interior. The processes employed involve various types of chemicals, including cyanide and mercury, which may be emitted into streams and rivers. The toxicity of these substances to humans has been thoroughly documented.