Letters Blogatory

The Blog of International Judicial Assistance
By Ted Folkman

Breaking: Lago Agrio Plaintiffs Sue Ecuador in the Inter-American Commission on Human Rights

Member of the Cofán Dureno community in northern EcuadorLetters Blogatory has learned that the Ecuadoran plaintiffs who obtained a judgment against Chevron in Ecuador have filed a petition against Ecuador before the Inter-American Commission on Human Rights. Here’s the scoop:

Chevron is engaged in an investment treaty arbitration against Ecuador under the US/Ecuador bilateral investment treaty. Chevron is seeking orders that would require Ecuador to suspend the enforcement of the Ecuadoran judgment, or in the alternative, to indemnify Chevron against any loss it suffers if and when it has to pay the judgment.

It seems that the plaintiffs are concerned that Ecuador may buckle under the pressure, since Ecuador would find it difficult to pay the judgment. The plaintiffs are now seeking an order from the Inter-American Commission under Article 25 of the Commission’s Rules of Procedure requiring Ecuador to take precautionary measures to prevent a violation of what they assert to be their human rights. In particular, the petition asks the Commission to request precautionary measures sufficient to assure that:

1. the Republic of Ecuador will refrain from taking any action that would contravene, undermine, or threaten the human rights of the Afectados to life, physical integrity, and health, or their rights to a fair trial in all respects, to judicial protection, to the determination of remedies for their claims and the enforcement of any remedies so determined, and to equal protection of the law without discrimination …

2. the Republic of Ecuador take all appropriate measures to affirmatively protect the Afectados’ right to life, physical integrity, health, a fair trial, judicial protection, the determination and enforcement of remedies for claims, and equal protection of the law without discrimination …

This opens up a new front in the battle between the three main players in the case: the Ecuadoran plaintiffs, Ecuador itself, and Chevron. There is an irony here. The Ecuadorans have firmly rejected the idea that the arbitral tribunal has the authority to boss Ecuador around. But they are now asking the Inter-American Commission to boss Ecuador around! Perhaps the view is that the Inter-American Commission on Human Rights has more legitimacy than the arbitral tribunal? It’s not immediately clear to me why this should be so, since in both cases Ecuador’s submission to jurisdiction arises out of its own treaty commitments.

We will keep you posted on this interesting development and will have more analysis of the petition in the coming days.

Photo credit: Caroline Bennett / Rainforest Action Network

Ted Folkman
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5 responses to “Breaking: Lago Agrio Plaintiffs Sue Ecuador in the Inter-American Commission on Human Rights”

  1. Karen Hinton

    Ted, The U.S.-Ecuador Bilateral Investment Treaty does not empower the tribunal to demand Ecuador violate its Constitution by interfering in the judiciary system. We are not asking Ecuador to violate its Constitution. We are asking Ecuador to leave its judiciary alone, as the Constitution requires. This is what we are asking the Human Rights Commission to ensure happens. There is no irony in that.

    Reply
  2. Ted Folkman

    “The U.S.-Ecuador Bilateral Investment Treaty does not empower the tribunal to demand Ecuador violate its Constitution by interfering in the judiciary system.”

    Karen, I don’t really understand your point. I think you are saying that Chevron is asking the arbitral tribunal to require Ecuador to violate its own constitution but that the Lago Agrio plaintiffs are asking the Inter-American Commission on Human Rights to require Ecuador to obey its own constitution, and that that’s the real difference between the two proceedings. I think the premise of your comment—that any outcome that requires Ecuador to violate its own constitution is necessarily wrong—is incorrect. Suppose that Ecuador amended its constitution to say that all foreign-owned oil fields immediately become the property of the state, and that no Ecuadoran court had jurisdiction to award compensation to a foreign oil company on account of the expropriation. Surely Ecuador could not defend itself before an investment treaty tribunal by saying that its constitution did not permit the relief the oil company sought, whether on separation of powers grounds or any other grounds based on its internal law!

    Here is an American example of the point I’m making. A Mexican citizen, José Ernesto Medellín, was convicted of murder and sentenced to death by a state court in Texas. At the time of his arrest, Texas authorities did not inform him of his right to consular notification under the Vienna Convention on Consular Relations, a treaty to which the United States is a party. At the time, the US was also a party to the Optional Protocol to the Convention, which meant that the United States had submitted to the jurisdiction of the International Court of Justice any disputes about the application of the Convention. Mexico sued the United States in the ICJ, and the court held that Medellín was entitled to review of his sentence. There was no question that the United States was bound, as a matter of international law, by the ICJ’s judgment, and President Bush ordered the Texas court to give effect to the ICJ decision. Texas refused, essentially arguing that the Convention was not self-executing and that without implementing legislation, the President lacked the authority to direct the courts of Texas to do anything. The Supreme Court agreed with Texas, even though it also recognized that the United States had an obligation in international law to obey the ICJ judgment.

    In other words, a country’s inability, under its internal law, to carry out its international obligations does not mean that the international obligations don’t exist.

    This doesn’t mean that I think that the claim before the OAS is no good, or that Chevron’s claim in arbitration is sound. I really don’t have a view on the merits of either question. It’s just to say that I think that the point you objected to—my comparison of the two proceedings—is a good one.

    Reply
  3. Two Wins For Chevron | Letters Blogatory

    […] award is illegitimate because it requires Ecuador to violate its own constitution. As I noted in my dialogue with Karen Hinton, the Ecuadoran’s PR representative, I don’t understand how this can be a good argument. […]

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