judgment of ecuador v. colombia

7/29/2019 Judgment of Ecuador v. Colombia

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XLV Anniversary Session The Hague International Model United Nations 2013

International Court of Justice Page 1

ORDER OF THE INTERNATIONAL COURT OF JUSTICE

Present:

President: Ozdalga

Judges: Buchelli, Carden, Dawda, Huang, Laporte, Li, Magd, Markou, Maurus, Mwaura,

Paterson, Reid, Sahu, Salter, Stanley-Ryan, Subashi, Walther, Warith, VanNievelt

The International Court of Justice,

After due deliberation,

Regarding the application by the Republic of Ecuador in the proceedings of Ecuador v.

Colombia,

Whereas the parties stipulated to the following facts:

1. Both countries are Parties to the Pact of Bogot, and that the Pact of Bogot states thatdisputes that cannot be resolved can be brought before the ICJ;

2. Colombia has been conducting an aerial spraying program known as Plan Colombia,which seeks to eliminate illegal coca production through aerial spraying of herbicides;

3. The herbicides used in the aerial spraying contain glyphosate, as well as other substances;4. Both parties embrace the spirit of international co-operation, and to this end have

engaged in talks which so far have proved inconclusive;

5. Colombia is one of the world's biggest sources of illicit coca; the illegal cultivation ofcoca represents a serious problem and the international community as a whole;

6. Both countries are parties to and have ratified the Convention on Biological Diversity;7. Both parties recognize that the ICJ is not bound by stare decisions; it may however

decide to refer to its previous decisions in deciding a case;

8. Both parties recognize that under Article 38 of the Statute of the ICJ, the ICJ is entitled tomake use of the teachings of the most highly qualified publicists of the various nations

as a subsidiary means for the determination of rules of law";

9. Both Colombia and Ecuador condemn the trade, growth and use of illegal drugs and arecommitted to working towards their eradication;


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10.To this end; both parties, the United States and 175 other member states have signedthe1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and

Psychotropic Substances by 2008 - a treaty that promotes the international cooperation of

all signatories to collectively address the problem of illicit drugs;

The court makes the following findings of fact and/or law:

Whereas Plan Colombia has resulted in environmental, economic, and social damage in Ecuador;

Whereas the Republic of Colombia did not take all preventative and/or precautionary measures

within its power to avoid damage done to Ecuador, constituting a violation of territorial integrity

and national sovereignty under Customary International Law as delineated by Article 38(1)(b) of

the United Nations Charter;

Whereas it has been affirmed that illicit cocoa production within the 10 kilometer radius to the

Ecuadorian border is not sufficient to allow Colombia to invoke a state of necessity under Article

33 of the International Law Commission;

Therefore, the International Court of Justice orders, adjudges, and decrees that:

1. Colombia is liable to Ecuador for systematic environmental, economic, and socialdamages in compensation of a sum to be determined at a later hearing according to proof;

2. Colombia and Ecuador are obligated to establish a 10 kilometer buffer zone at the borderof the two nations in which aerial fumigation campaigns will not be permitted;

3. During the twelve years of Plan Colombia, Colombia has further violated:a. Article 3(c) of the Convention on Civil Aviation,b. Articles 14(1)(a),(b), and (c) of the Convention on Biological Diversity,

Concurring: Justices: Carden, Li, Maurus, Markou, Reid,

Laporte, Huang, Sahu, Salter, Subashi,

Walther, Warith, Van Nievelt

Separate but Concurring: Justice: Buchelli

Separate but Concurring: Justice: Magd

Separate but Concurring: Justice: Stanley-Ryan

Separate but Dissenting: Justices: Dawda, Paterson

Separate but Dissenting: Justices: Mwaura, Ozdalga


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SEPARATE BUT CONCURRING OPINION BY JUSTICE BUCHELI

Regarding the Application by The Republic of Ecuador in the proceedings of The Republic of

Ecuador v. The Republic of Colombia, concerning the effects of the Colombian aerial sprayingcampaign: Plan Colombia on the people, biodiversity, and agriculture of The Republic of

Ecuador,

In accordance with the majority opinion, I find in favor of the Applicant. We agree that

Colombia has not submitted sufficient evidence to prove that it was and is in a state of

necessity. Also I agree that Colombia did not employ all the precautions that it could have taken

and therefore is in violation of the United Nations Convention of Biological Diversity to which it

is a signatory.

Furthermore, by its aircraft turnarounds in Ecuadorian airspace, Colombia was in direct violation

of the Convention on International Civil Aviation, and violated the national sovereignty of

Ecuador.

The fact that Colombia did not prove a state of necessity, the fact that it infringed upon the

sovereignty of Ecuador through its aircraft turnarounds, and its infringement of the United

Nations Convention of Biological Diversity are sufficient legal grounds for me to rule in favor of

the Applicant party. Had Colombia been able to show a state of necessity, its other actions,

namely its lack of precautions through the absence of a buffer zone on the Ecuadorian-

Colombian border, as well as its violation of Ecuadors international sovereignty would have

been in order. However, this was not the case, and, therefore, I am unable to rule in favor of the

respondent party.

However:

I disagree on the point of liability and damages on the part of Colombia. I feel that there was

insufficient evidence on Ecuadors part. They did not meet the burden of proof to show that it

was indeed the herbicide being used by Colombia that caused the damage to Ecuadorian crops

and population.

I have hereby rendered my opinion,

Justice Bucheli


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SEPARATE BUT CONCURRING OPINION BY JUDGE MAGD

Regarding the application by the Republic of Ecuador in the proceedings of The Republic of

Ecuador v. The Republic of Colombia, concerning the issue of aerial herbicide spraying,

In accordance with the majority opinion, this Judge finds in favor of the Applicant. The Judge

agrees that Colombia has breached Customary International Law by disregarding various

different Conventions, which were deemed to be part of Customary International Law, such as

but not limited to the Convention on International Civil Aviation and the United Nations

Convention on Biological Diversity. Furthermore the Judge also agrees on the absence of a state

of necessity, as proclaimed by the Columbian advocates. Lastly the Judge agrees that insufficient

evidence was presented to persuade the Judges that all preventative measures were taken to

minimize or prevent the risks of the aerial sprayings.

However:

Even though the Judge agrees that the actions of Colombia have resulted in damage, the Judge

does not believe that sufficient evidence has been presented to prove social damage to the

Ecuadorian people. Instead the Judge sees that in addition to economical and environmental

damage only injury to human health has been proven by evidence. In addition the Judge believes

that the risk assessment of the aerial sprayings, no matter how questionable, should have been

conducted prior to the sprayings and not in the year 2005. Thus this Judge thinks that Columbia

has failed to take all necessary precautions as well as providing Ecuador with a plausible excuse

for the long interval between the beginning of the sprayings and submitting the case to the court.

I have hereby submitted my separate but concurring opinion.

Justice Magd


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SEPARATE BUT CONCURRING DECISION OF JUSTICE STANLEY-RYAN

Regarding the application by the nation of Ecuador in the proceedings of Ecuador v. Colombia,

concerning the case of herbicide sprayings (Plan Colombia) along the Ecuadorian-Colombianborder,

I agree with the majority opinion, finding in favour of the applicant state (Ecuador). I agree that

Colombia has failed to sufficiently prove a state of necessity (to the criteria defined by theInternational Law Commission), which would excuse breaches of international law. Whilst aerial

spraying may have been proven in this judge's view to be the only viable option for coca

eradication, this is only fulfils one of two prerequisites necessary. the evidence put forward did

not sufficiently prove a grave and imminent danger to Colombias national interest, meaning thatthe prerequisites for a state of necessity were not fully met. Therefore, I also agree that Colombia

has breached customary international law (herein CIL), with regard to the Convention on Civil

Aviation, a legally binding agreement: the flight of state aircraft over Ecuadorian airspacewithout permission breaches this convention, and therefore represents a breach of CIL. Thirdly, a

state of necessity not being reached means that Colombia also breached the convention on

biological diversity: the evidence put forward by Ecuador proved that Plan Colombia has had asignificant impact on the Colombian environment and people, and evidence of human effects in

Ecuador would suggest that the other recorded impacts of Plan Colombia detailed in evidence

are liable to have occurred in Ecuador as well as Colombia. Colombian spraying close to the

border would allow spray to drift in the wind or be impacted by other variables, thereby meaningthat even if the witness testimony that planes had closed spray valves over Ecuador is true,

transboundary harm could have occurred. Therefore, I agree that Colombia is liable for

environmental, economic and social damages that can be proved to be a direct result of its

spraying program, as spraying near the border represents a clear risk of harm to the Ecuadorianstate.

However:

I disagree with the majority on two points: That Colombia did not take all necessary precautions,

and that a buffer zone would make a positive impact on the situation at hand. Colombias witness

statements have established that necessary precautions were taken regarding when and howspraying operations were operated. It was also stated in witness testimony that at the signing of

The United Nations Convention against Illicit traffic in narcotic drugs and psychotropic

substances Colombia openly declared Plan Colombias existence, hence also providingsufficient notice as they were required to. It has been put forward that a buffer zone is anotherprecaution that should have been undertaken; I was not convinced on this point, as a buffer zone

(as will be discussed later) simply provides an area free of spraying that can be used for drug

production. Although damages to Ecuador still can demonstrably be said to have occurred, no

evidence points to these being deliberate; therefore, I am forced to assume they were caused byfactors beyond Colombias control. Therefore, I believe Colombia took all precautions it could

reasonably be expected to take given the circumstances and uncontrollable factors surrounding


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Plan Colombia.

With regard to a buffer zone, I disagree with the majority opinion of its effectiveness. The point

was raised during deliberation that a buffer zone can fall both ways: a way of limiting drugtraffickers into a small, confined area and therefore making eradication easier, or providing a safe

zone within which they would work and be stronger due to a higher concentration. Both of thesearguments are equally valid, and as no evidence was put forward by either the applicant orrespondent to prove one over the other I am forced to believe that the risks and benefits of a

buffer zone are equal. Therefore, I see no net benefit regarding the existence of a buffer zone,

and do not support this point.

I have hereby rendered my opinion.

Justice Ashley Stanley-Ryan


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DISSENTING OPINION BY JUSTICE OZDALGA AND MWAURA

Regarding the application by the Republic of Ecuador in the proceedings of the Ecuador v.

Colombia case concerning Aerial Herbicide Spraying,

We dissent,

Under the draft articles submitted to the General Assembly by the International Law

Commission in 2001 establishing customary international law on transboundary harm, Ecuador

does not have a right to bring this case because of the repeated delay on their part to address its

concerns.

Colombia was not responsible for the damage proved to exist in the border region between the

two countries, mainly on the Ecuadorian side; therefore, they do not have to pay compensation,

nor should a buffer zone be set up.

We further disagree that the respondent cannot invoke a state of necessity because drug

trafficking is an extremely important and grave peril with which Colombia is faced, with other

possible alternative options not being viable in the area.

We also dispute that Colombia did not take all necessary actions to minimize the risks of Plan

Colombia, which was its responsibility under Article 3 of the ILCs draft articles on customary

international law. Certain measures to minimize risk were taken in consideration of Ecuador, and

Ecuador had been properly notified of the Plan, which constitutes the responsibilities of

Colombia.

Therefore, we, the dissenting Justices, make the following findings:

1. Ecuador does not have a rightful claim under customary international law and under theConvention on Biodiversity to ask for compensation due to the fact that the case was

brought to the International Court of Justice significantly late. The moving party did not

meet its responsibility to submit its claims immediately when the damage occurred,

thereby waiving any claim they might have to ask for compensation, which leads the

dissenting judges to find that Ecuador has no viable and justifiable legal grounds to ask

for the aforementioned compensation. This lead us to believe that "Delay defeats equity",

which we state because the defendants did in fact wait eight years before they presentedthe case to the ICJ; an unreasonable amount of time for what they stated was a crucial

case.

2. The herbicide aerially sprayed by Colombia under their plan to eradicate coca and poppyplantations was not the cause of the damages in Ecuador because the damages proven to

occur in certain areas of Northern Ecuador and Southern Colombia, along the border of


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the two countries, were not widespread and systematic over the geographical area in

which the herbicide spraying was conducted as we would expect if the herbicide had ahigh possibility of causing damage to the crops, people, environment and the ecosystem.

3. The Ecuadorians did not take further action apart from this alleged talks and thencontinued to "turn a blind eye" to the people of Ecuador who had "severe" injuries; whichconsisted of rashes and itchy eyes that were in fact curable in 2-24 hours.

4. The court has found Colombia liable for entering Ecuadors air space as well asbreeching its sovereignty. However we believe that there had been an express term

present since Ecuador and Colombia had n official meeting, which resulted in an open-

ended joint-communiqu. This led us to believe that Ecuador was aware of the terms andrisks of Plan Colombia, which makes their claim even less valid.

We have hereby rendered our opinion.

Justices Ozdalga and Mwaura


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DISSENTING OPINION OF JUSTICES PATERSON AND DAWDA

Regarding the case between The Republic of Ecuador v. The Republic of Colombia,

We find the following facts:

1. Aerial spraying of coca plantations by Colombia, known as Plan Colombia, commencedin 1999;

2. Ecuador first brought a case against Colombia in 2008, nine years after the beginning ofthe spraying;

3. Ecuador had access to information that the aerial spraying of coca plants by Colombiawas taking place and that this spraying could occur near the Ecuador-Colombia border;

4. The herbicidal spray used by Colombia consisted of approximately 40% glyphosate, 40%water and 13% surfactants;

5. Colombia would only permit spraying if the following conditions were met:a. The temperature was lower than 95 Fahrenheit,b. The wind speed was lower than 10 kilometers per hour,c. The humidity was lower than 75%,d. The planes were flying over Colombian territory,e. There was a visual confirmation of the coca plants;

6. Colombia never sprayed herbicides directly over Ecuadorean territory;7. Aerial spraying of coca plants was the only effective way to reduce the size of coca

plantations with a minimal harm to human life;

8. Aerial spraying reduced the area of coca plantations in Colombia by approximately85000 acres;

9. There was no real evidence that herbicides from Plan Colombia ever en teredEcuadorean territory;

10.The toxicity for humans of glyphosate, alone or in a solution is low;11.Drug gangs in Colombia, including the FARC, have killed a number of high level

politicians and pose enough of a threat to the Colombian state that Colombia should beconsidered to be at war with them;


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As Ecuador had ready access to information about Plan Colombia and its potential to cross into

their border, their failure to bring a case to the ICJ for nine years creates substantial doubt that

the spraying of herbicide was not as lethal and threatening as the Ecuadorean party claims.

According to the International Law Commission and as cited in previous rulings by this court,Colombia will be absolved of its responsibility to binding treaties and international law if it

shows it was in a state of necessity when those actions occurred.

For Colombia to be in a state of necessity, it had to prove its actions were the only way to

safeguard an essential state interest against a grave and imminent peril.

The only way to safeguard implies that it must be the only effective method of protecting the

interests of the state; as the methods provided by Ecuador were either irrelevant to the specific

situation on the ground or would have led to a large loss of life and spraying reduced the area of

fields by more than half, spraying was the only way for Colombia to protect its interests.

It has been satisfactorily proven that the continuing threat posed by drug gangs such as FARC to

the peace and security of the people ofColombia constitutes a grave and imminent peril to an

essential state interest.

Based on these findings and deliberations, we determine that:

1. Though Colombia did breach Ecuadorean airspace, Colombia should be absolved ofliability for it and any other breaches of international treaties as it was in a state of

necessity;

2. Colombia did not violate customary law or spray crops in a manner that violated thesovereignty of Ecuador or any of the treaties Colombia had signed or customary

international law;

3. Colombia took all reasonable and necessary precautions to prevent any damage toEcuador;

4. Ecuadors case was brought to the ICJ nine years after Plan Colombia began allegedlycausing harm to Ecuador, thus deeming the delay more significant than the equity of the

case;

5. The implementation of a buffer zone on the border with Ecuador would both have nolegal basis and prove harmful.

We have hereby rendered our opinion.

Justices Paterson and Dawda

judgment of ecuador v. colombia

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