Tag Archives: Latin America

An inconvenient forum: Thoughts on the Chevron-Ecuador Case

by Nicholas A. Fromherz

As a student of environmental law, resident of the Andes, and former clerk for two federal judges, I have followed the Chevron-Ecuador case with increasing interest—and, of late, increasing concern.  No matter which side we believe, it is clear that the people and ecology of Ecuador’s Lago Agrio region have been affected by the operations of Chevron (or, perhaps more accurately, those of predecessor Texaco and the state-owned Ecuadorian firm Petroecuador).

But that will always be the case with extractive industry—more important factors for purposes of litigation are to what extent and what, if anything, was done in the way of prevention and/or mitigation. This post will not attempt to answer those questions.  More informed individuals and groups have offered a range of answers as to these very points (see here and here), and my own speculation on the matter would only add to what has become a morass of conflicting information.

Instead of analyzing the merits of the case, I would like to discuss two issues that have received less than complete coverage: (1) the unintended and unlikely consequences of Chevron’s effort to remove the case from U.S. federal court on grounds of forum non conveniens; and (2) the institutional and socio-political factors that must be considered when analyzing Chevron’s claims of judicial corruption by the Ecuadorian courts.

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Nicholas Fromherz to guest-post on the Chevron-Ecuador case

by Rhodri C. Williams

This being a blog on the legal aspect of conflicts over land and natural resources, it has become increasingly untenable to continue ignoring one of the most bitter and protracted such disputes of all time, namely the Chevron-Ecuador case. At the same time, given the numerous twists and turns this litigation has taken in its various phases, trying to catch up with it, let alone say something meaningful on it, seemed well beyond my faculties.

Based on the reading I have been able to do, I was also aware of the strong passions the case has raised. For instance, this overview in the New Yorker portrays the conflict as a battle of wills between two highly willful lawyers – in effect, the unstoppable victims’ advocate meets the immovable corporate defense attorney. Recent exchanges on Opinio Juris between contributor Kevin Jon Heller, on one hand, and Notre Dame professor Doug Cassell have similarly struggled to keep to the genteel conventions of non-dittohead neighborhoods of the blogosphere (see in particular this exchange in comments).

For all these reasons, I have been cautious in approaching the toxic debate about the toxic lawsuit over the toxic sludge of Lago Agrio. However, I am now all the more happy to be able to provide a forum to repeat TN guest and South American Law & Policy blog author Nicholas Fromherz, who will focus on the broader implications revealed by the case for parties to transnational litigation of all stripes.

Nick’s post has now been published as:
An inconvenient forum: Thoughts on the Chevron-Ecuador Case (30 March 2012)

Bolivia road protests continue

by Rhodri C. Williams

Following up on my earlier post on indigenous peoples’ protests against a road project in Bolivia, it seems there have been further developments. In brief, the minister responsible for the violent removal of the protesters has now resigned and the march to La Paz has resumed. The fate of Bolivia’s Isiboro Secure Indigenous Territory and National Park (‘Tipnis’ in Spanish) continues to hang in the balance.

In addition to providing updated coverage of the issue, the BBC has also recently provided a useful analysis of why President Morales, himself both indigenous and an advocate of the rights of indigenous peoples, would persist in backing the proposed road (“Bolivia Amazon protesters resume Tipnis road march”, 01 October 2011). The analysis merits quoting at length: Continue reading

The ‘grin nervously’ school of large-scale land dispute management

by Rhodri C. Williams

The BBC is doing a nice job following two unrelated land disputes on opposite sides of the Pacific that are raising related discomforts for the governments that wish fervently they would go away.

In the eastern hemisphere we have China, where the government has now promised to investigate the sale of farmland to factory owners in Lufeng City (Guangdong Province), which sparked several days of ‘sometimes violent’ protests. It is not a big secret that one of the biggest current sources of political grievance in China is the ability of local authorities to capture nearly the entire value ‘created’ by turning peri-urban farmland to industrial or residential use. However, the resulting protests usually tend to take the form of something short of what could be termed ‘riots‘. In this case anger over the loss of ‘ancestral farmland’ appears to have boiled over into something more ominous:

Several hundred people were reported to have attacked a police station and government buildings, and to have used earth-movers to smash down a wall around the seized land.

Although the situation was reported as calm over the weekend, locals interviewed expressed continued anger.

Meanwhile, in the western hemisphere, Evo Morales’ pro-indigenous government in Bolivia is being rocked by indigenous protesters. Just over a month ago, protests began in the capital, La Paz, over an announcement that a road was about to be built directly through the  Isiboro-Secure Indigenous Territory and National Park. Despite government protestations that the road (which is heavily backed by Brazil and would connect its territory with Pacific ports) would promote regional development, local Amazonian Indians began a one month protest march to La Paz. Locals not only expressed anger that they had not been consulted over the road, but also concerns that it would destroy both the human and natural ecology of the area:

Environmental groups and indigenous activists say the road will open the region up to illegal logging, as well as settlement by farmers from the highlands who grow coca leaf – the raw material for illegal cocaine.

With the deployment of police at Yucumo, halfway along the route to La Paz, the march turned to a confrontation earlier this month. Events have moved rapidly since, with the protesters initially breaking the blockade by using the Foreign Minister, David Choquehuanca (who had come to negotiate with them) as  sort of perambulatory ‘human shield’. As of yesterday, the police had been ordered to disperse the protesters and force them onto buses home, sparking the resignation of Defense Minister Cecilia Chacon.

Where the Chinese government bought time by promising an investigation, Mr. Morales “offered to put the issue to a regional referendum” on Sunday. In both cases, and in different ways, the role of democracy is of some interest. In China, where democracy is absent, an investigation remains the only credible means of delivering some meaningful form of accountability (other than further mob self-help). However, in Bolivia, the situation is the opposite.

The rationale for recognizing the territories of indigenous peoples is typically the need to protect them – as minorities – from the effects of democratic decision-making processes they can never win. This is what makes both the failure to consult with the affected communities in advance and the proposal for a referendum now more than dubious. Even at the regional level, a majority can surely be found that would prefer commerce with Brazil to the less tangible benefits of living next to some of the world’s last functioning indigenous societies. At the national level, support for the road may be even stronger. Mr. Morales may be indigenous, but he is also an elected politician.