Human Rights Dialogue (1994–2005): Series 2, No. 2 (Spring 2000): Litigating Human Rights: Promise v. Perils: Articles: The Meaning of a Legal Victory in the Ecuadorian Amazon

On September 8, 1999, the Independent Federation of Shuar People of Ecuador, FIPSE, won an unprecedented legal victory in defense of its right to organizational integrity. The case’s legal relevance, however, is outweighed by its role as an organizing tool within the larger campaign to defend a territory.

In April 1998, the Ecuadorian government granted U.S. oil company Arco Oriente (Arco) the rights to exploit oil in a 500,000-acre area of primary rainforest in the Ecuadorian Amazon, which falls entirely on Shuar and Achuar homelands. The Shuar and Achuar indigenous peoples, numbering about 50,000, had organized themselves and were aware of the dangers posed by this lease. They knew that oil development in the northern Ecuadorian Amazon had had a devastating impact on local communities, including the loss of land and wildlife, contamination of rivers, new diseases, and destruction of indigenous cultures. They were also familiar with Arco’s efforts to undermine indigenous organizations in a neighboring province. Workshops organized by indigenous organizations, the local church mission, and NGOs had helped raise awareness of the impact of oil development as well as the rights of indigenous peoples.

In reaction to the news of Arco’s license, the three governing federations of the Shuar and Achuar people––FIPSE (Shuar), FISCH (Shuar), and FINAE (Achuar)––called for special assemblies and pronounced their unconditional opposition to oil development on their lands. FIPSE resolved to prohibit any individual or community negotiations with the company. FIPSE president Tito Puanchir stated publicly:

The Shuar and Achuar Peoples have struggled, since colonization, to maintain and reaffirm our identity and culture. . . .We have organized ourselves and defined a series of procedures destined to protect our integrity as a People. The decisions that affect all the members of the organizations like ours should be discussed in a General Assembly and have the approval of the majority of our members. [Letter from Tito Puanchir to Oil and Gas Journal, October 25, 1999]

However, Arco president Herb Vickers claimed that the company was “committed to working more on the local level because, in its opinion, the large indigenous organizations no longer represent the people” (Diario el Expresso, July 25, 1999). Like other oil companies, Arco deployed divisive strategies to enter Shuar territory. It flew into several isolated base communities with offerings of health centers, work, potable water, and free flights. The company also met with Shuar individuals, the governor of a neighboring province, and members of the armed forces in attempts to gain access to Shuar territory. It succeeded in convincing leaders of three FIPSE subgroups to sign a contract authorizing the company to enter their territory in exchange for $3,000 for each subgroup.

FIPSE members denounced these actions and looked to the courts to defend their territory and communities. Since early 1998, FIPSE had been organizing workshops with lawyers and educators from our organization, the Ecuadorian office of the Center for Economic and Social Rights (CESR), an international NGO with years of experience working with indigenous communities in the Amazon. With FIPSE’s active support, CESR lawyers drafted an amparo petition seeking to prohibit Arco from approaching FIPSE individuals and territory without authorization from the FIPSE General Assembly. Under the constitutional right of amparo, a court may grant an emergency injunction to stop, avoid, or remedy actions of a public authority or private party that violate constitutional or international rights and threaten imminent harm. Surprisingly, amparo has rarely been invoked for human rights purposes, and never to protect an indigenous organization from any kind of threat.

The petition argued that by ignoring the decision of the FIPSE General Assembly and attempting to negotiate directly with individuals and communities, Arco’s actions violated the rights of the Shuar to preserve their customs and institutions and to determine their own development priorities as provided for by International Labor Organization (ILO) Convention 169 and the Ecuadorian constitution. In a meeting in the Amazon with more than 100 Shuar representatives, CESR lawyers explained the petition, along with its limitations and other legal options. The lawyers reworked the petition based on participants’ suggestions and coordinated its filing with a public demonstration organized by the Shuar.

On August 24, 1999, hundreds of Shuar and Achuar descended upon the town of Macas to protest oil development, meet with local officials, march to the regional governor’s offices, and present the amparo petition to the local courthouse. On September 8, a civil court judge ruled that Arco had violated the Shuar people’s rights to organizational integrity and ordered the company to refrain from negotiating with FIPSE members or communities without the authorization of the FIPSE General Assembly.

While the victory was swift and unprecedented, its legal impact should not be exaggerated. Given the political clout of Arco and the overwhelming importance of oil to the struggling economy, the injunction itself is not likely to pose long-term problems for the company. Ecuador’s ineffective judicial system and a systematic favoritism toward oil companies make such decisions difficult to enforce, and Arco has an appeal pending. Moreover, the court ruling does not prohibit drilling on FIPSE territory. In response, CESR, FIPSE, and a national trade union have presented a petition to the ILO to raise international awareness about the threats posed by Arco and put pressure on the government and oil industry to ensure respect for indigenous rights in the development process.

The lawsuit is no panacea, but it has slowed Arco’s plans. More significantly, it has injected the notion of “rights” into the Shuar and Achuar’s political struggle. Understanding the harms and injustice of oil development as human rights violations has helped them to strengthen their resolve and focus their campaign. The lawsuit also provided a motivating victory, much public attention, and a tangible rallying point for communities. To ensure that the amparo petition served these larger ends, it was crucial that CESR and others spent much time with the communities building trust, understanding, and a sense of ownership for the legal action. Strategically, an amparo petition is well suited to strengthening local organizing efforts: It is quick, relatively uncomplicated, and allows for a broad interpretation of rights consistent with the threats felt by community members. As Puanchir stated following the legal victory:

We are learning how to defend ourselves and to claim our rights. . . . [Arco] has total sup-port of all the institutions of the country including the armed forces. They tried to intimidate and undermine the Shuar organization. It weakened and divided us, but it was an opportunity for us to look for new strategies to overcome the problem. Now the people are on alert. We are more united than before. . . . If they divide us, we’re finished. Our unity demonstrates that we are resisting. We are going to achieve what we are looking for. . . . Now we have a judicial decision that recognizes our effort and offers us protection. [Interview with Gabrielle Watson, Oxfam, September 15, 1999]

The Shuar and Achuar will likely face many future threats in trying to defend their piece of the Amazon. Litigation will never provide a final bulwark against outside threats, and lawyers cannot hope to play a decisive role. Instead, legal victories must be viewed as pieces of larger campaigns and evaluated in terms of their benefits to local organizing and activism, which represent the best long-term hope for these communities.