ANNEX: 4. Lessons

The case of the Oriente offers a number of lessons for ESCR advocacy. Almost all of the positive and negative factors listed above were present in some fashion and strategies were effective to the extent that they took these factors into consideration. The following analysis evaluates the obstacles facing ESCR advocacy in the Oriente, the impact of ESCR in confronting the oil problem, and the most effective strategies.

A. Obstacles

Some of the obstacles encountered in the Oriente may be particular to that context, as it is rare to find two opposing sides with such enormous power imbalances: petroleum companies like Texaco with annual earnings four times greater than Ecuador’s GNP and responsible for 50% of external exchange for the country versus poor and isolated indigenous and campesino communities. Nonetheless, the study underscores many of the difficulties encountered in almost any struggle over ESCR. Among the most important were:

the political and economic forces arrayed against the communities: Ecuador’s oil boom has drastically changed the country and oil earnings now account for approximately half of the national budget. The government, the military, the multilateral banks, the U.S. government, the state oil company and a number of powerful private companies are all highly invested in increasing oil production. No other industry comes close to the influence exercised by these interests in Ecuador. Additionally, the majority of these actors are not directly implicated by human rights treaties making claims against them more tenuous;
the lack of awareness and recognition of ESCR: Despite the fact that Ecuador’s Constitution has ratified all the major human rights treaties relevant to ESCR (including ILO 169), has a member on the UN Committee on ESCR, a member on the OAS Court, and the first High Commissioner for Human Rights, until very recently, ESCR were almost entirely absent from the public debate. There are no legal precedents supporting them and very little awareness or understanding about them among NGOs, the public, and representatives from the Congress and Ministries. Accordingly, the institutions charged with overseeing petroleum, the environment, and ESCR (the Defensor del Pueblo), until very recently have been woefully underfunded and ineffective;
the lack of resource: documenting violations of the RHHE caused by petroleum is extremely difficult. Water samples cost up to US$1000/sample and can’t pinpoint the source of the contamination, and an increase in health problems is equally difficult to measure and even harder to link to any one cause like contaminated water. Given these obstacles and the lack of precedents, bringing legal complaints also requires greater effort. Additionally, working in remote areas like the Amazon is logistically demanding. To the extent that resources for this work have been available, it has come for related issues like indigenous rights or environmental conservation;
divisions among sectors and advocates: confronting a problem of this magnitude and complexity, without the support of traditional human rights allies, has required a broad coalition of groups extending from the communities to the United States. Inevitably with collaborative efforts of this sort, divisions have arisen and often undermined the work. Some of these division arose from simple cultural and economic differences or differences in interests among allies. But these have been greatly exacerbated by the oil industry which has taken advantage of its enormous financial capacity to corrupt and co-opt indigenous leaders and to sow distrust among communities and between communities and their allies.

B. Successes:

The struggle against irresponsible development in the Oriente goes back many years and it remains a very active fight. Over the last half-decade, the most obvious successes in this struggle include the following:

the Amazonian population and the general public is much more aware of the impact of oil development and the fact that it violates a number of rights and these issues are regularly raised in the mainstream media;
an active network of communities and local institutions in the Amazon have organized around the issue of oil and have found a powerful voice in the national debate over future development;
local indigenous groups are much better informed about the risks of oil development and their rights and in most cases have succeeded in forcing companies to consult/negotiate with them before beginning operations in their territories
the Congress is much more concerned and active in overseeing environmental and social issues related to oil and is working on a new and stronger law, with the participation of social leaders, to control future oil development
private companies no longer dump their wastes, as was the practice with Texaco, and take pains to negotiate agreements with local communities before beginning their operations;
a number of international institutions have put pressure on the government and industry including the World Bank (a loan was held up by the issue), the OAS, the IWT, and the U.S. Congress and State Department
for the first time in Ecuador’s history, two large parks were recently declared off-limits to industrial development;
popular protests, including sit-ins, have twice forced the government to reverse itself on the Texaco case in order to support the Ecuadorian plaintiffs;

C. The role of ESCR

Activism around the RHHE has played an important part in the larger struggle over the Oriente’s development. However, given the number of actors and the complexity of the petroleum issue, it is difficult to measure the precise role of any particular strategy or the impact of “rights” in general. Accordingly, the following conclusions are more anecdotal than empirical:

encouraging affected communities to take action: Paulo Freire suggests that overcoming “a consciousness of internalized subordination” is the first step in the decision to take action and towards that end rights offer a particularly valuable tool. Framing the problem of oil contamination in terms of rights has provided legitimacy to the complaints of affected communities and has encouraged a long-overdue sense of injustice that has helped in organizing and mobilizing these communities. Community members are more likely to risk/dare raising their complaints in front of government and industry officials and the general public if they can supported by legally recognized rights.
increasing public pressure on the government and industry: calling a long-accepted problem a “rights violation” suggests that things could be different and that somebody is responsible. The language of rights has helped spark Congressional investigations and contributed to a public sense that something was wrong. It has definitely helped increase the level of “shame” attached to government neglect and industry activities;
engaging international and government institutions: the U.S. State Department, the World Bank, the OAS, transnational corporations (shareholders and executives), and government institutions are all more likely to take notice of complaints based on international treaty obligations. Rights provide a language that these bodies are forced to recognize. NGOs and community representatives have had success involving these institutions in their struggle and rights have played a critical role in those efforts;
attracting media and public attention: as discussed above, rights are not the most important factor in attracting attention, but they have definitely helped;
providing a common rallying point: rights offer standards for evaluating government and industry conduct. In the case of Ecuador, violations of legal norms have provided a focus for campaigns directed at new legislation, regulations and industry conduct. Rights have often united different social sectors and NGOs behind particular initiatives.

D. Most effective strategies

Among the most effective strategies used to confront irresponsible development in the Oriente were:

Building capacity at the local level: Amazon communities are capable of playing a critical role in the defense of their environment. “Participation” is in vogue with international institutions like the World Bank and communities enjoy a number of rights concerning the development of their territories. Many of these communities are eager to take a more active role, but they lack the necessary information and support. ESCR provide an important tool to both energize and support grassroots struggles and ESCR advocates have to encourage these sectors given both the paucity of support at higher levels and the need to bring in local knowledge and vigilance to make ESCR effective.
Working with Congressional allies: Congressional leaders have played a key role in oil development in the Oriente. They establish the framework for development and conservation, provide funding for oversight agencies, and have the power to investigate and influence all the important actors. Sympathetic members of Congress have helped activists get information, put pressure on Ministers and company officials, raised the problem in the media, and have begun to develop stronger legislation.
Targeting non-state actors: The Ecuadorian government has neither the resources nor the political willingness to fully protect the RHHE in the Amazon. Accordingly, it has been necessary to target other actors equally implicated in violations, particularly private companies. While these companies are not technically accountable to human rights treaties or the Constitution, they are politically and morally accountable and that can be just as effective, particularly in the absence of legal channels. ESCR have helped pressure these companies and have provided a framework to fill in regulatory vacuums. For instance, in a recent proposal from Occidental Petroleum to a small indigenous community, the company promised to respect all international human rights treaties, including ILO 169, in its relations with the community and work activities in the Oriente. As moral and political instruments, ESCR can be effectively employed with multilateral banks, foreign lenders, trading partners and any other institution concerned about its public profile.⁸
raising awareness about rights through concrete legal action: the U.S.-based lawsuit against Texaco has probably done more than anything else to raise the profile of the oil problem and to change the terms of the debate from one of government needs and environmental problems to one of rights and violations. It would be difficult to duplicate the lawsuit as these sorts of cases are both extremely costly (already running well beyond $300,000 and it has yet to be accepted) and rarely successful. But less extreme cases at the domestic level or in front of international tribunals could also serve to provoke public interest, change common understandings, and put pressure on the government. The key is assuring that information about the cases is widely disseminated, and that they are part of larger campaigns rather than isolated events.

V. Conclusions

While the promotion of the RHHE in the Oriente has required a long-term investment in the region and has encountered a number of setbacks, on balance, it has been very successful. The impact of rights language and instruments – of “rights advocacy” – is not only evident within the struggle over oil, but has spread to a number of other contexts. ESCR have become common currency among Amazonian communities, and community groups have been encouraged to use these rights in their work more generally. The media, the government, the public, the judiciary, lawyers, social movements and a wide variety of NGOs have been exposed to ESCR through the struggle around oil. This consciousness raising and experience with the legal ESCR instruments is bound to have ripple effects. The newly established Defensor del Pueblo has taken an interest in the issue of oil development and has sought help from NGOs to oversee and promote ESCR more generally. The National Human Rights Plan backed by the government contains a number of progressive and detailed commitments to ESCR. Recent campaigns around health, education, worker rights, indigenous rights and external debt have all employed the rhetoric and instruments of ESCR and have begun to develop legal actions around these rights.

It would be hard to point to any concrete gains (e.g. less poverty) based on these activities, but there is much reason to hope that the public awareness and increased activism will eventually translate into greater respect for ESCR. ESCR will rarely enjoy the quick, tangible fixes and legal victories common to the CPR field (freed activists or punished torturers), making grassroots, sustained activism the critical frontier. This work is more complicated, slower, and harder to measure, but there are many new allies warming to the task and as the field matures, advocacy efforts will only grow more powerful.

⁸ There is nothing disingenous about extending obligations to these other actors. As clearly stated in the Universal Declaration of Human Rights and reiterated in all subsequent human rights treaties “The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall . . . promote respect for these rights and freedoms." Preamble, (emphasis added).