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I traveled to Washington on Wednesday for an interview with Nathalie Cely Suárez, Ecuador’s ambassador to the United States, at the embassy in Washington’s Columbia Heights neighborhood. The building itself is a handsome Renaissance Revival-style mansion. I arrived a few minutes early and watched the comings and goings in the main room on the first floor. A military officer in a very grand overcoat with epaulettes came in while I was waiting. He marched up the staircase, pausing at the landing to give a smart bow to the national flag on display there before proceeding upstairs. On the table where I was waiting, there was a copy of Solidarity Magazine, some ads for a local Latin American theater festival, and a newspaper I’d never read before, the Washington Diplomat, with articles like “Obama: Defender of Democracy or Ambivalent Bystander?” and “Minority Rule: Democratic Safeguard or Source of Political Dysfunction?” When the time for the interview arrived, I was shown up to the ambassador’s office on the second floor.
After we chatted a bit about Boston (Ambassador Cely studied at the Kennedy School for several years and loves the city), we got down to it. I began by asking about the current conditions in the Lago Agrio region and what was being done for the people there. Ambassador Cely surprised me by suggesting that the Ecuadoran government had been doing more to remediate the environmental problems in the Lago Agrio region but had stopped because Chevron had begun to use the government’s remediation efforts to argue that Ecuador itself believed it was responsible for the remediation. “I found it outrageous. I mean, one of the questions that I asked very candidly to my government was, ‘Why didn’t we remediate this, if we care so much about this?’ And I found out that we—it’s very sad that the system hasn’t been able to provide a concrete, final solution to the community.”
I asked about how the Chevron case fits in to the broader US/Ecuador bilateral relationship. The ambassador, who is an economist by training, clearly would prefer to focus the relationship on trade—Ecuador is a growing market for US exports, and it exports products such as cut flowers to the US. But it’s clear that the Chevron case comes up in most or all of Ambassador Cely’s bilateral meetings.
We talked a bit about lobbying. Ambassador Cely noted Chevron’s lobbying efforts at the USTR, which she called unfair: “Sometimes I think that it’s not very ethical to try to hold jobs in Ecuador hostage in your fight. Just think about the thousands of farmers in Ecuador who could have lost their access to this market just because Chevron” sought to persuade the US government not to renew the ATPA trade preference.
I asked about the arbitration and Ecuador’s unwillingness or inability to obey the interim order of the tribunal regarding suspension of the effectiveness of the Lago Agrio judgment. Ambassador Cely laid out Ecuador’s familiar position: it was impossible under the Ecuadoran constitution for the executive to order the judiciary to suspend the effectiveness of the judgment (Doug Cassel, I hear you harrumphing), and in any case human rights considerations (which, she said, were actually part of Ecuador’s domestic constitution) trumped whatever obligation the state had in the arbitration. I noted that the interim award was just that—interim relief meant to preserve the status quo, and that it wasn’t clear how preserving the status quo would violate anyone’s human rights, but she returned to the separation of powers issue. As in the Medellin case, I think the ambassador’s argument is plainly right in the sense that sometimes domestic constitutional constraints can prevent a state from carrying out its international obligations and plainly wrong to the extent she means to assert that the constitutional problem relieves the state from the international obligation.1That’s probably too simplistic—see this article by Luke Eric Peterson. She began to argue about biased arbitrators in international arbitration generally, but she demurred when I asked her point-blank whether she thought the arbitrators were biased in this case.
Why didn’t Ecuador have a real PR effort in the case sooner? How did it allow itself to be so overmatched by Chevron’s PR? “Because of the lawyers. The lawyers said, ‘Don’t say anything. The government doesn’t have to defend. These are private issues.’ We played by the rules. We listened to every word that the lawyers said about this.”
We talked about corruption in the Ecuadoran judiciary—both plain old graft, or what she calls “petty corruption,” and political influence. With regard to petty corruption, she says she read and was “upset” by Judge Guerra and the tawdriness of the graft he claimed took place (though she said she didn’t know whether to believe his story or not, calling it “unbelievable”). But she noted that measures have been put in place to try to reduce the problem, for example increases in judicial salaries, a change in court procedures towards more oral proceedings, better training for judges, creating mechanisms for litigants to complain about corruption, a merit-based system of judicial selection, and so forth. But she agreed that there was a problem, in the past and today. She recognized that the executive branch of the government in Ecuador had undertaken a radical restructuring of the judiciary, but she argued that this had been done democratically, with the approval of the voters. “When the government got tired of the justice system not improving, the government asked the citizens of Ecuador if they wanted to provide the executive branch with special powers, for a year and a half, to conduct this process. The citizens of Ecuador said yes.” Now, it’s possible to understand this as either benign or sinister; readers may want to consider the dialogue I had with Chevron advocate Doug Cassel on this point recently. It seems to me that it’s impossible to know how to think about the judicial restructuring in Ecuador without making a political judgment about motives, earlier problems with the judiciary, and the like. Doug has, I think, come to the view that the politics behind the moves were sinister. I am not so sure; my main view on this is that much caution and humility is needed here.
When we got to political influence, I said that the thing that gave me the most pause was the fact that some of the Lago Agrio plaintiffs themselves had taken the position that the courts of Ecuador have systemic problems and are unfair. I was surprised that she was surprised by the question.2Incidentally, what are the Huaorani and their lawyers thinking? If they defeat Donziger’s forum non conveniens motion, won’t they later be estopped to say that the Ecuadoran courts are fair and adequate? And if so, won’t they have undercut the Ecuadoran judgment that they claim to have an interest in? Odd. Unfortunately, because she hadn’t heard about the Huaorani case, she wasn’t able to comment on this. Her basic view is that when President Correa was elected, he persuaded Ecuadorans of the need to radically restructure the government and the social structure. Before, she claimed, power and wealth was centralized in a few wealthy families that owned banks and media outlets. She describes the redistribution of political and economic power and increased public investment in things like infrastructure as President Correa’s main accomplishment, which has led to a dramatic increase in the identification of Ecuadorans with their government. In the past, “if you had asked Ecuadorans who they believed, they would say the church, the media, and in third place it was debatable who they believed. Now if you ask, they say the government.” Depending on your politics, this could be wonderful or it could be terrible. She suggested that critics such as Álvarez Grau, whose declaration we reviewed in a prior post, are really expressing the resentment of the groups that no longer are in power. After the interview, Ambassador Cely sent me a redacted version of Ecuador’s counter-memorial on the issue of political influence that it submitted earlier this year in the arbitration. I hadn’t seen it before, and I still haven’t digested it, but I’m including it here as it sets out Ecuador’s position on this, which to me is one of the most interesting issues in the whole affair.
Does Ecuador accept that Donziger and the LAPs acted wrongly in the Lago Agrio litigation by making payments to Cabrera, ghost-writing his report, etc.? “We don’t have an opinion. We don’t want to have a public opinion about Donziger.” Not exactly a ringing endorsement. She called the accusations against Donziger “sad” and said that “the end does not justify the means,” though she said she “appreciated that he had been fighting with such passion” for a long time. “The law needs to be served, and the means need to be legitimate.”
Bearing in mind that Ambassador Cely is not a lawyer, I asked a procedural question that has arisen in light of the criticism of the recent cassation decision, namely that the National Court of Justice did not review any factual allegations of fraud, but limited its review to questions of law. Was there some remedy or mechanism by which Chevron could have presented its “new” evidence of fraud? The answer wasn’t clear to me, but the ambassador did point to Chevron’s delay in bringing its evidence forward. There’s something to this, since if Judge Guerra is to be believed, he solicited a bribe from Chevron on behalf of himself and Judge Zambrano while the case was still ongoing in Ecuador. I discussed this issue, and Chevron’s response, in an earlier post. It does seem, however, that there may be another appeal available to Chevron—an appeal to the Constitutional Tribunal.
- 1That’s probably too simplistic—see this article by Luke Eric Peterson.
- 2Incidentally, what are the Huaorani and their lawyers thinking? If they defeat Donziger’s forum non conveniens motion, won’t they later be estopped to say that the Ecuadoran courts are fair and adequate? And if so, won’t they have undercut the Ecuadoran judgment that they claim to have an interest in? Odd.
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