«Il n‘y a pas un monde développé et un monde sous-développé, mais un seul monde mal développé»
HUMAN RIGHTS VIOLATIONS AND ACCESS TO JUSTICE FOR THE VICTIMS OF CHEVRON IN ECUADOR1
History and Effects of the Activities of Chevron (formerly Texaco) in Ecuador
On 5 February 1964, the military junta governing Ecuador granted a concession covering some one and a half million hectares of territory to Texaco Gulf in the Amazon region of Ecuador. Although the concession was later reduced, the area on which Texaco operated surpassed 400,000 hectares (in the provinces of Orellana and Sucumbíos).2
Texaco carried out exploration and oil drilling in jungle regions inhabited by various Ecuadorean indigenous communities.3After the exploration phase, during which explosives were used and an incalculable number of boreholes were drilled into the earth’s crust, Texaco drilled more than 350 wells. During the drilling of each of these wells, a huge quantity of toxic waste was produced, known as “drilling mud”.4
Owing to its high toxicity, this waste had to be stocked in adequate containers and treated responsibly. Texaco, far from doing this, dug almost a thousand pits that were used as open air sewers, without any sort of protection to prevent leaks through the walls of the pits and the release of pollution. When these products were not dumped into the environment, they were simply burned intentionally by Texaco, with equally harmful consequences for the populations and the environment.
Then, during the operating of the wells, these same pits were used by Texaco to stock waste water and other dangerous residues, whereas steel cisterns would ordinarily have been required. The company thus realized considerable savings – to the detriment of both the environment and the local populations.
The irresponsibility of the company did not stop there. In spite of legal5 and contractual6 prohibitions, the content of these “pools” was simply dumped into the nearby rivers streams. Texaco had installed in each “pool” a rudimentary drainage system called a “goose neck” systematically used to drain the contents of the pits into the nearest streams. Although Texaco was well aware of the noxious effects of its activities7 and had available technology that would have avoided – or at least considerably reduced – the damage done by dumping these toxic substances into the environment,8 this technology was never used during its operations in Ecuador.9
Whereas this region was previously characterized by its vast biodiversity and its abundant resources for the inhabitants, these resources have disappeared or are seriously harmed by the hydrocarbons because of the water and soil contamination, threatening the populations’ right to food10 and to health.11
Several peoples that had been living in the region since time immemorial have disappeared or been displaced. The Cofán population was reduced form 5,000 inhabitants to less than 800. They have been displaced from their lands, while the Tetete population was completely exterminated.
Laboratory analyses carried out by Chevron’s experts in the region where the company operated show a high presence of total petroleum hydrocarbons (TPHs) in the ground, which indicates a generalized presence of hydrocarbons. They also show the presence of other carcinogenic elements such as benzine, toluene, polycyclic aromatic hydrocarbons (PAHs) and heavy metals and/or anti-corrosion agents, such as chrome IV and mercury.12 It has been determined with certainty that the presence of these elements in the areas where Texaco operated is the result of the oil operations carried on by this company.
Regarding the contamination of the surface water, there is a confession by Texaco’s legal counsel acknowledging in an open letter having dumped more than 60 million liters of waste water into the Amazon streams.13 Underground water was also polluted, which is confirmed by smelling or tasting the water from wells (in so far as one dare). There is also a strong presence of TPHs and other elements such as chrome VI (characteristic of hydrocarbons) coming from leaks and infiltrations resulting from the lack of insulation of the waste pits in which Texaco dumped or buried the drilling mud and other toxic pollutants. All these poisons are today to be found in the environment, causing skin illnesses, vaginal and intestinal infections and other respiratory, reproductive and circulatory system problems as well as many types of cancer (throat, stomach, kidney, skin, brain), which have caused the death of many persons.14
Thus, in 26 years of oil drilling in the Amazon region of Ecuador, Texaco has polluted more than 450,000 hectares of one of the planet’s richest biodiversity regions, destroying the living and subsistence of its inhabitants, causing the death of hundreds of persons and a brutal increase in the rate of cancer and other serious health problems. More than 60 billion liters of toxic waste water were dumped into the rivers and streams, 880 hydrocarbon waste pits were dug, and 6.65 billion cubic meters of natural gas were burned in the open air.
Attempts at (and Obstacles to) Obtaining Justice against Chevron
The litigation against Texaco was initially undertaken in New York, where, at the time, Texaco, Inc., had its world headquarters, on 3 November 1993, barely one year after Texaco had left the country. Nearly 30,000 Ecuadoreans, indigenous and colonos, directly or indirectly affected by the activities of Texaco on their lands, thus filed a legal suit in the United States. In 2002, after nine years of procedure, without having even considered the pollution, the United States courts finally accepted the argument put forward by Chevron (which had then merged with Texaco)15 and decided not to hear the case of the Ecuadorean inhabitants under forum non conviniens, arguing that Ecuador was the more appropriate place for the case to be heard.16
Pursuing their quest for justice, and in keeping with the decision of the United States court, the populations affected by Chevron’s operations filed a complaint in Ecuador on 7 May 2003.17
However, in spite of the ruling of the United States court, Chevron contested the jurisdiction of the Ecuadorean judges over the case, arguing that Chevron had never operated in Ecuador and that Chevron was not the company that had succeeded Texaco because there had never been a merger.
During the first years of the trial in Ecuador, the plaintiffs were persecuted by the Ecuadorean armed forces, which were in fact in the pay of Chevron as security services.18 This “access” by Chevron to the military also made possible the falsification of reports from the intelligence services and the suspension of arrest warrants.
Chevron also drafted a plan to assure that the experts find only clean samplings.19 An “independent” company was also set up by Chevron to analyze samplings and to project an image of impartiality.20
On 14 February 2011, the Court of Sucumbíos finally handed down its ruling and ordered Chevron to pay nearly US$ 9 billion in compensation to finance the clean-up of the contaminated ground and water, a health program to aid the cancer victims and a program to restore the lost fauna and flora as well as the lost agricultural land. Chevron was also ordered to pay punitive damages, given the magnitude of the damage caused and the bad faith demonstrated by its lawyers throughout the trial.
This judgment was confirmed on appeal on 3 January 2012, and it was then subjected to an examination by the National Court of Ecuador, the country’s highest judicial instance. On 12 November 2013, this court confirmed the ruling. It also confirmed all the rulings of the lower courts regarding environmental damage and let stand the order for punitive damages.21
Thus, after 20 years of complex legal proceedings, the plaintiffs succeeded in surmounting the many obstacles and winning their case in court, but they have not yet managed to obtain compensation for the harm caused.
In spite of its defeat in courts that it chose itself, Chevron still refuses to acknowledge the ruling against it. And Chevron is using its substantial financial resources not to fulfill its obligation of compensation for the harm done but to finance an international campaign of defamation attacks against the plaintiffs, their lawyers and any other persons working to support their cause.22
Chevron has also hired and paid US$ 15 million to a company called Kroll to conduct surveillance of the activities of the supporters and sympathizers of the victims.23 And Chevron has paid more than US$ 300,000 to an Ecuadorean judge disbarred for corruption24 in exchange for his testimony to convict the plaintiffs in the United States.25 Thus, the sames United States courts that declared that they had no jurisdiction in the complaint filed by the Ecuadorean victims of Chevron are now prosecuting those victims as if they were criminals trying to extort money from an innocent company.
To that, one must add the attempts to buy previous Ecuadorean governments and the major political and media campaign launched against the government of President Correa, by means of arbitration complaints26 and an international campaign27 as well as attempts to discredit the Ecuadorean judicial system. The victims are thus faced with a giant ready and able to deploy all the means at its disposal, a giant that, after having poisoned the lands of the Amazon region of Ecuador, seeks to subject and humiliate the victims that dare file a complaint.
On their side, the victims, traveling the long legal road that Chevron forces them to take, have undertaken legal action to obtain the implementation of the ruling in various countries. They must face innumerable difficulties, starting with lawyers’ fees, the problem of jurisdiction deriving from acknowledgment of the ruling form a foreign court and even political pressure.28
After 21 years of litigation, the impunity continues for Chevron, and the victims of its activities in Ecuador are still waiting for justice and compensation.
The Necessity of a Binding International Instrument
The Chevron case is emblematic in many ways and shows, in particular, the destructive effects for the environment and the local populations of natural resource extraction activities carried out by transnational corporations (TNCs) without any control or oversight, and the tortuous road that the victims must travel to obtain justice and compensation. The victims must face extremely powerful actors, with powerful influence networks and almost unlimited means, and they cannot always count on the cooperation of the governments of the countries within which the TNCs have their headquarters, governments which very often favor TNC economic interests rather than the rights of victims outside the country.
The current economic system accords many rights and protections to TNCs without their being held responsible for their actions and for the human rights violations committed. An international system that recognizes the rights but not the obligations of the most powerful economic actors can hardly be called stable and balanced. It is clearly biased in favor of the TNCs and leaves the victims of their activities without any avenue of redress. It is high time to establish a balance within this system.
The adoption of binding norms at the international level is necessary to complete and support the efforts at the national level and to guarantee a real control over the activities of TNCs and their impacts on human rights, as well as access to justice for the victims of their activities. These norms should, in particular, include responsibility throughout the entire supply chain, from the top corporation on down to the smallest supplier and sub-contractor. They should guarantee access to justice for victims of their activities abroad in the country where the TNCs have their headquarters. Finally, they should reinforce international judicial cooperation in order to facilitate the implementation of court rulings concerning human rights violations committed by TNCs.
In view of what has just been stated, the Europe – Third World Center (CETIM) is calling upon the Human Rights Council to set up an intergovernmental working group with a mandate to draft binding norms for TNCs.
It is also calling upon all governments, and in particular the government of the United States of America, to facilitate access to justice for the victims of Chevron’s activities in Ecuador and to cooperate fully so that the ruling by the Ecuadorean court will be executed.
