Over the past ten years, the Colombian government has persistently been digging itself into a paradoxical hole so deep that it will be remarkable if the government can make it out on top. Despite the impressive maintenance of democracy since 1810 and an “excellent relationship” with the United States on several fronts, Colombia is far from a peaceful nation. Plagued by seemingly endless civil wars and battles with violent guerilla organizations and drug cartels, the Colombian government has fought tooth-and-nail to keep its democracy in place. Colombian natives live in fear of left-wing terrorist rebel groups like the Fuerzas Armadas Revolucionarias de Colombia (“FARC”), the Ejército de Liberación Nacional (“ELN”), and the Autodefensas Unidas de Colombia (“AUC”). These groups kill more than three thousand innocent Colombian civilians each year, and have defiantly objected to Colombia’s negotiation efforts by repeatedly attempting to commit political assassinations and kidnap Colombian leaders.
Perhaps the biggest problem with these terrorist groups is that they are standing on solid economic ground, bringing in an estimated two hundred to three hundred million dollars each year by taxing coca farmers, processing the crop into cocaine, and smuggling it into the lucrative international drug trade. Thus, what started as a “Colombian” problem has developed into an international problem, particularly as Colombia is responsible for the majority of worldwide cocaine production and U.S. cocaine traffic. Recognizing the urgency of this situation and realizing that inhibiting the drug trade would largely cut off funding to left-wing rebel groups, former President Andrés Pastrana Arango launched “Plan Colombia,” a supposed six-year program to end armed conflict by focusing on the aerial eradication of coca and poppy plantations, largely funded by the United States.
However, what began as a good faith effort to bring peace and democracy to a troubled nation has developed into an epic battle of human and environmental rights. Beginning in the year 2000, aerial fumigations of a powerful herbicide mixture containing glyphosate, a chemical with unknown acute toxicity levels in humans, was sprayed across the countryside for days at a time from 6 a.m. to 4 p.m. each day. While purportedly aimed at Colombian coca and poppy plantations, the clouds of spray were picked up by the wind and carried elsewhere, landing not only on Colombian people, animals, homes, and food crops but also across the border into Ecuador and into the San Miguel River bordering the two countries. Ecuador admits that at times, some herbicide drift was caused by the wind. However, Ecuador argues that all too often, Colombian planes sprayed herbicides directly on the shared national border and used Ecuadorean air space to turn around, allowing the herbicide to fall indiscriminately on Ecuadorean people, plants, and animals.
Immediately following the sprayings, Ecuadorean citizens were inflicted with serious adverse health reactions, including fevers, diarrhea, intestinal bleeding, nausea, skin and eye problems, and even a few deaths. Local crops relied on by Ecuadorean people for sustenance—including yucca, plantains, rice, coffee, and hay—were destroyed. Despite Ecuador’s repeated attempts to negotiate with Colombia over a period of eight years, Colombia repeatedly refused to cooperate. Thus, in March of 2008, Ecuador submitted an Application Instituting Proceedings to the International Court of Justice (“ICJ”), demanding that Colombia’s actions be declared internationally wrongful acts, and that Colombia be ordered to compensate the Ecuadorean people and government for their losses. As it stands, the ICJ is thus confronted with a unique controversy where it must either challenge an international drug ring that has terrorized Colombia for decades or address human rights and environmental issues presented from a neighboring state.
As unique as the Case Concerning Aerial Herbicide Spraying (Ecuador vs. Colombia) (“Aerial Herbicide Spraying”) is standing on its own, it has come before the ICJ at an interesting point in the jurisprudence of International Environmental Law (“IEL”). On April 20, 2009, the ICJ delivered a landmark opinion for IEL in Pulp Mills on the River Uruguay (Argentina v. Uruguay) (“Pulp Mills”) that sets an interesting background for Aerial Herbicide Spraying. In Pulp Mills, Argentina argued that Uruguay breached its obligations under the 1975 Statute of the River Uruguay in connection with the planned construction and authorization of two pulp mills on the river. Although this claim is primarily grounded in treaty provisions binding only Argentina and Uruguay, Argentina argued—and the ICJ agreed—that the treaty incorporated customary international law standards, including general principles of cooperation, due diligence, and prevention to the extent that they represent the opinio juris of nations. In the end, the ICJ refused to award reparations to Argentina for the alleged damage from Uruguay’s pulp mills. The court did, however, introduce some interesting developments to IEL in its decision. For example, the ICJ utilized the case to acknowledge separate obligations under IEL: “procedurally” based and “substantively” based obligations. Moreover, the court went out of its way to reemphasize that due diligence is a “corpus” of international law, and for the first time, that an environmental impact assessment (“EIA”) is required under customary international law.
The main purpose of this Comment is to analyze the Aerial Herbicide Spraying case—which is still in its preliminary stages— and how the outcome may be based on the Pulp Mills decision.
