Why is it that Ecuadorian people have voted massively against the exploitation of the Yasuní reserve? Wouldn’t the billions of that oil be needed in the state budget? This is not what Ecuadorians think because...
The photo is from years ago. The woman - young, still with very dark hair - is in the middle of the forest, precisely in the area of Lago Agrio, in the heart of the Ecuadorian Amazon. She shows a black palm tree to the camera and stares at it without smiling. And there's no reason to: what makes her hand palm and fingers disappearing in broad daylight is, in fact, oil.
This is how the US oil giant Chevron left the site after years of operating there. The environmental and social consequences continue to this day.
"People even organise the so-called 'toxic tours' in the area. That photo was taken of me on one of those tours. There, when you put a stick in the ground, water doesn't come out: oil comes", says Adoración Guamán, the Ecuadorian-Spanish lawyer who for decades has been denouncing what she does not hesitate to describe as a "legal architecture of impunity."
Today, in fact, and after being condemned in 2011 by an Ecuadorian court in a trial that lasted eight years, had six judges and accumulated more than 220,000 pages, the company ended up being benefited by a Dutch court.
Conclusion: now it is Ecuador that must compensate the company. "The people affected by the pollution, meanwhile, have yet to see a single dollar," she explains. In addition to being a human rights activist, Guamán - the woman in the photo in Lago Agrio - is an expert on international trade, supply chains and modern slavery.
She is a professor at several universities in Latin America, has been an advisor to the Ecuador’s government during the presidency of Rafael Correa (2007-2017) and for years has been fighting for the creation of an international and binding legal instrument capable of achieving what is so difficult: to make transnational corporations, which violate human rights and cause environmental disasters far from their headquarters, be accountable for their actions, give compensation to the victims and not go unpunished forever.
That is also why Guamán - who is a professor of labour law at the University of Valencia, holds two doctorates and is the author of 75 scientific articles on the subject – has being, for a decade, part of an initiative with a promising name: Global Campaign to reclaim the sovereignty of peoples, dismantle the power of transnationals and put an end to impunity. Nothing less. "Moreover, since June 2014, the United Nations has voted to move forward with the creation of an instrument to this end," he explains.
What is the current status of this project?
R/. Although the process at the UN began in 2014, the popular struggles had been going on for a long time with the peoples' tribunals, etc. What happened in 2014 was that a resolution (the n° 269) was passed at the UN to set up a working group. This was promoted by Ecuador and South Africa, and it has already held eight sessions; the ninth will be in November 2013.
At the time, in 2014, Ecuador wanted not only to lead the region on human rights but to control corporate power, a mandate that is within its constitution. All of this was very much marked by the Chevron case.
Former President Correa and his foreign minister’s idea was to ensure that international human rights law could be modified in order to establish instruments so that the large economies controlling the world have obligations and responsibilities with respect to human rights and nature. This was supported by various civil society groups and - in an unprecedented consultation and to the stupefaction of the European Union - they called a vote and won. The EU, Japan and, of course, the US voted against. It started well, but, eight years on, there is still a long way to go.
Why is that?
R/. After the elections and after a shift to the right of Ecuador's government, things started to get complicated. There were battles that they did not want to fight - the battle to achieve this binding treaty, for example - and Latin America was not and is not part of the discussion. Thus, after eight sessions, we have a text that is being amended and the chairmanship of the group, held by Ecuador, leaves much to be desired. It has been unable or unwilling to hold really productive meetings.
We called for the creation of a committee or a tribunal that could sanction companies directly, as is the case with the International Crimes Commission, or even open a special chamber dedicated to this issue at the International Court of Justice, as France had proposed.
But, after the change of government in Ecuador and with the coming to power of Lenin Moreno (2017-2021), the document we had written - where we had included obligations for companies - was discarded and what was written down was a text without teeth. One in which companies no longer appeared as subjects of direct obligations. A decaffeinated text that insisted on the obligations of States and in which the human rights primacy was removed. Furthermore, also all reference to the creation of a court was removed and there was hardly any mention of a committee. It was all very non-transparent. It was not even known who drafted those texts.
To this day, there are no international sanctions or justice for the victims, apart from some extrajudicial economic agreement. What gives you hope?
R/. For me, there are two clear points of hope. On the one hand, social mobilisation continues. Around the world, social organisations are standing up to transnational companies and their voices are increasingly being heard.
Sixteen years ago, these voices targeting transnationals were not heard in the media or in academic circles. Those who spoke out against impunity or global corporate power were not heard. Today, with the struggle for this binding treaty alone, we have managed to put on the negotiating table the fact that these powers exist, which - as Salvador Allende said - are supra-state powers, running the world and are impossible to stop. In the face of this, there is the social struggle. But, at the same time, in the national framework, there are numerous initiatives that are producing some results.
In addition, there are achievements being made in international tribunals and in climate and human rights litigation, for example. This is working well.
There is data from social organisations that have taken many companies to international tribunals. And they are winning. Many transnationals have been put to the ropes and, with or without a binding agreement, a lot of progress continues to be made. It is slow going and it is not going to be easy, because this goes directly to the hard core of transnational capitalism. Today it may seem that impunity continues, but at the social level this is not the case.
What is the role of consumers in all this?
R/. This question has been discussed a lot: for many years there was a tendency, when it became clear that corporate social responsibility was just a facelift, according to which the responsibility should lie primarily on the buyer. However, while public awareness of consumption is very important, it is actually the duty of the state to make it happen. We cannot hold people alone responsible for the consumption of goods that should be banned precisely because they have been produced on the basis of serious violations of human rights or of the environment. Because when a good or a service is stained with blood or produced through the destruction of nature, the state has something to do about it.
Are there any good examples of this?
R/. The Dutch due diligence law - which is not yet out - goes a bit in that direction. It proposes that consumers should be able to buy "with peace of mind". It explicitly says, "This law is for consumers to buy with peace of mind". But that's not what I'm fighting for, it's not so that consumers can buy with peace of mind. What I am looking for is for the state to take responsibility for how companies import to sell (in its territory or elsewhere), to produce surplus value based on the violation of rights, no matter where they are committed.
But what can be done now that corporations are in governments?
R/. The corporate capture of public powers is a phenomenon that, unfortunately, is happening everywhere, from this lady whose brother trafficked in masks to the Minister of Labour who came from the banana sector, etc. However, the fact that we have rules ensuring that - beyond this - there is a law, is something any way.
That's why I call them "trench laws": because they are passed under progressive governments so that, when conservative governments come in, they will be there. Until they are repealed, at least. When I've been in governments, I've been involved in entrenching social policies.
What was the experience of litigating against Chevron like?
R/. That was my first case on these issues and I got involved with it relatively late, when the first lawsuit was already over. I am very good friends with Pablo Fajardo, the plaintiff's lawyer, and I got involved with the case as part of the Union of Lawyers for Chevron Texaco. I had the opportunity to work with them on the ground and that's what brought me back to Ecuador. Discovering the barbarity they had done was what led me to get even more involved. After the people affected sued Chevron and won their case, in 2011, with a final judgement, Chevron left, leaving 300 dollars in the account and the forest destroyed. And, at the height of absurdity, now - because of the judgment of a Dutch court in 2018 - it is Ecuador who must pay. That is impunity.