Environmental Journeys 22: The World Court II — Ecuador v Colombia, a case of presumptions v realities

As relayed in my previous story on the World Court, I shared events that took place near the end of the journey. These last events for me were the hearings before the ICJ in the Hague. That is where I visited the museum and saw The Girl with the Pearl Earing. I’m sharing that painting by Vermeer again and complement it at the end of this journey with paintings of Ecuadorian women. My visit to Ecuador which I share below was near the beginning.

The Girl with a Pearl Earring by Johannes Vermeer.

The Ecuador v Colombia case arose when Ecuadorian farmers and their families along the border with Colombia experienced spray from a program to eradicate coca plantations in Colombia to impact the production of cocaine. The program was called Plan Colombia and supported by the United Stares as part of the drug wars in the early part of the 21st century (from 2000 to 2015). The spray was supposed to stay in Colombia but it was apparent that it did not.

A view of aerial spraying in Colombia. (Photo: Colombia .com)

A coca plantation in Colombia. The plants resemble the blackthorn bush and can be 7 to 10 ft tall.

The Ecuadorian communities affected by the spraying are highly dependent on the small crops of yucca, plantain, and other crops they can grow on small plots of land as well as limited aquaculture in fish ponds. They are socially marginalized by the oil producing region to the south and the cartel-driven coca trade across the river and extremely vulnerable to any disruption to their precarious economic activity. In addition, health care services in this region of Ecuador were all but nonexistent.

Peiter Booth and I along with Clara Brillembourg of the law firm Foley Hoag travelled to Ecuador to evaluate the situation. A key aspect of the visit was taking testimonials from the impacted families in villages along the Putumayo River that separates Colombia and Ecuador as well as sampling and making observations of agricultural and native plants, soils, fish ponds and sediments.

Planning our field work along the river.

Children had made drawings of the events and these illustrated their fearful reactions to them. Mothers and fathers explained their families’ experiences including observed effects on crops and fish ponds. We visited a number of villages. Pieter Booth spoke Spanish as he grew up in Argentia but I relied on translators.

One of the villages we visited.

One of the farm families we visited. I found their stories and experiences credible and informative. Their stories were argued against by experts for the State Department and for Colombia. I wondered why families from various villages would make up stories if there was no substance to them. The drawings made by children of planes flying over and spraying were especially compelling.

While we did not meet with indigenous people in Ecuador, they and the amazon forests within which they live were a part of our assessment. Photo credit: Achuar boys in Ecuador by Andy Isaacson for The New York Times

I researched the herbicide and found that it was likely a souped-up formulation with chemicals added to permit the active agent to more easily penetrate the waxy surfaces of the plants. That might explain why it caused skin and eye irritation to people in the areas where spraying occurred. The experts for the other side argued that because spraying of the herbicides follow specific protocols such as those applied in normal field applications, their models of those scenarios showed that the spray could not reach into Ecuador. That was the presumption part of the case; it was based on the premise that written and approved protocols were followed. But we knew that the spraying of coca plants was not welcome and that the FARC (Fuerzas Armadas Revolucionarias de Colombia) — a revolutionary guerilla group involved in the drug trade — was armed and fighting back. We also knew that the goal of Plan Colombia was to eliminate the coca farming practices as a priority and based on the testimonials of family farmers and information from Colombia it did not appear to be a priority to accomplish this in a way that was also protective of people or the environment.

I mention the FARC as they also posed a potential threat to us during our visit to the area. Kidnappings and other consequences were known to happen and we were possible targets. Security escorted us throughout the area and watched over us as we did our work. Pieter Booth did an enormous amount of laborious field work on this project but I caught this picture of him and his personal guard while he was resting.

Pieter Booth taking a rare break. We had guards because of the proximity to areas of activity by the FARC guerilla forces and the potential danger they posed.

We also investigated potential for exposures of herbicide formulations to fish ponds. This pond along the river was used to farm Tilapia, an aquaculture product in this part of Ecuador.

Me and Pieter on the Ecuador side of Putumayo River, the border with Colombia. Behind us in Colombia is a coca plantation, the source of cocaine, the target of Plan Colombia eradication program, and FARC territory.

The experts and lawyers for Colombia argued strongly for the reliability of their rigorous spray protocols and exposure modeling work. They presented that as “the truth”. But through Freedom of Information Act (FOIA) Request we secured the flight records which detailed the actual releases of herbicides with regard to plane speeds, elevations, meteorological conditions and locations. That ended the matter as the reality of spraying did not adhere to the protocols. This was a good lesson regarding the difference between presumption and reality and how people’s behavior and environmental conditions can divert from what is presumed to be the case. Environmental scientists need to consider these possibilities when translating from design and protocol to reality.

An aspect of this work that I especially enjoyed involved one of my favorite groups of animals, frogs. These animals are sensitive to the chemicals being used and therefore inadvertent exposures can be harmful. Ecuador was the first case where I thought about the differences in the ecology and behavior of groups of animals in ecosystems that differ from where traditional animal testing is conducted and the assumptions that underpin those tests. Most toxicological testing of amphibians (e.g., frogs) presumes a water-based exposure of larvae (i.e., tadpoles) and this was the toxicology data relied upon for assessing risk to frogs in Colombia. But this assumption misses the fact that tree frogs in the rain forests do not necessarily involve young that live in the water such as we are used to seeing in North America and Europe. Instead, many frog species in the rain forest care for the young by carrying them on their backs or by watching over them in tiny puddles within plants. Here are pictures of some these animals.

Many frog species in the rain forest exhibit parental care such as carrying their young on their backs and tending to the eggs and young. This is different from the species that are commonly tested for chemical toxicity. An important difference is that exposures will involve direct contact which would be more concentrated than the dissolved fraction in the water that is common for North America frogs.

The presumptions and assumptions advanced by Colombia’s experts fell apart and Ecuador prevailed in the case. Paul Reichler, the lead attorney for Ecuador explained the outcome as follows: Under the agreement, Colombia will both compensate Ecuador for past harms to people, crops and livestock, and restrict its future spraying operations to assure that none of the spray crosses into Ecuador. Ecuador is now fully protected. The agreement is not only a major success for Ecuador, but a model for other countries to follow in cases where one of them engages in activities in its own territory that cause harm across the border. This could apply, for example, to mining, construction or other industrial activities that pollute shared watercourses. You might also be interested in the insights on the legal proceedings and issues in this overview put together by Foley Hoag : Ecuador v Colombia regarding aerial spraying of herbicides along the border.

Our team in Ecuador included Pieter and me from Exponent, Clara Brillembourg an international lawyer from Foley Hoag, a sociologist, environmental advocate, photographer, and field sampling support.

I’d especially like to acknowledge the many contributions of Pieter Booth for his work in the field and helping develop the ecological aspects of the case. Jane Ma who I mentioned earlier also played a key role in evaluating forest canopies for damage from herbicides.

As with many environmental and health projects, this case involved a diverse technical team of health, environmental, and chemical experts from Exponent who are identified in this reference cited in the materials presented to the ICJ:

Charles A. Menzie, PhD, Pieter N. Booth, MS & Susan B. Kane Driscoll, PhD, with contributions/advice from Angelina J. Duggan, PhD, Charlotte H. Edinboro, DVM, PhD, Anne Fairbrother, DVM, PhD, Marion J. Fedoruk, MD, CIH, DABT, FACMT, Janci Chunn Lindsay, PhD, Katherine Palmquist, PhD & Brian J. Prince, MRQA, Evaluation of Chemicals Used in Colombia’s Aerial Spraying Program and Hazards Presented to People, Plants, Animals, and the Environment in Ecuador (hereinafter “Menzie Report”) (Apr. 2009). EM, Vol. III, Annex 158. https://www.icj-cij.org/sites/default/files/case-related/138/17540.pdf

Colombia experts pushed back on our report and we responded with the following which together with other materials submitted by Ecuador to the ICJ led to the successful outcome on behalf of Ecuador.

Annex 6 Charles A. Menzie, Ph.D. & Pieter N. Booth, M.S., Response to: “Critique of Evaluation of Chemicals Used in Colombia’s Aerial Spraying Program, and Hazards Presented to People, Plants, Animals and the Environment in Ecuador,” As Presented in: Counter-Memorial of the Republic of Colombia, Appendix (Jan. 2011). https://www.icj-cij.org/sites/default/files/case-related/138/17540.pdf

Closing this Environmental Journey

I began this environmental journey near the end of the journey as I relayed in The World Court I: Argentina v Uruguay, a case full of images. It was the hearing before the ICJ in the Hague. There is where I took time to visit a museum with its beautiful art reflecting the culture and history of the region. I had a similar experience in Quito Ecuador near the beginning of the journey and before I visited the communities, farms, and forests along the Putumayo River, the border with Colombia. There I visited a museum at which there was traditional artwork, much of it reflecting the confluence of cultural heritage and Christianity.

As I close this journey, I thought about paintings of Ecuadorian women to complement The Girl with the Pearl Erring from the Hague. I located and received permission from two artists. The first is a painting Ecuador Women by Shirley Monestier (website link: https://www.artbyshirleymonestier.com/contact.html). These are women going to market. It impressed me as two women, their backs to us, stories behind them, walking toward and into Ecuador’s future and their own.

Two Ecuador women dressed for market day. With permission from Shirley Monestier.

The second painting is by Barbara Mumby (website link: Visual Art| Barbara Mumby Studios ). Her Artist Statement is that Barbara considers herself a Narrative Shifter: using the arts to challenge inaccurate and outdated perceptions of Indigenous Peoples and other marginalized groups. She believes the arts to be a powerful and effective tool for survival and an instrument to unite communities and move public policy. I found the painting Ecuadorian Woman engaging in the way Barbara Munby used light and color. I felt the painting imbued contemplation and serenity.

Ecuadorian Woman with permission from Barbara Mumby.

I thank Susan Kane Driscoll and Pieter Booth for their review of this story.