Force majeure – literally “major force” but translated also as “cause beyond control” - usually describes unforeseen natural catastrophes such as earthquakes or major upheavals such as wars, which can void the the obligations of a legal contract.
But the Ecuadorian government now uses force majeure to describe legitimate community opposition to oil activities on indigenous territory in the Amazon rainforest.
On March 4, 2003, the Ecuadorian newspaper Hoy reported that the Ministry of Environment has agreed to allow two transnational companies to cancel their oil concession contracts under the provision of force majeure. The force majeure they are referring to is the determined opposition of Kichwa, Shuar and Achuar people who live in the concession areas to continued activities by the companies, Burlington Resources of Texas and Compania General de Combustibles (CGC) of Argentina. The CGC concession is owned partly by ChevronTexaco, according to Platt’s Oilgram News.
This turn of events, in what has been an intense struggle between indigenous communities and transnational oil companies, leaves the communities and their supporters wondering if they have won a major victory or are in increasing danger of repression.
On the surface, it would seem to be an inspiring victory for the indigenous people whose ancestral territories in the Amazon rainforest have become known as Block 23 (The CGC block) and Block 24 (the Burlington concession). Taken at face value, the decision frees the companies of any obligation to carry out oil activities in the areas, and means the will of the communities - who have officially decided not to accept oil development in their territories – will be respected.
But there are reasons to be skeptical. According to Hoy, Rene Ortiz, the president of the Association of Oil Companies in Ecuador, which includes both CGC and Burlington, has accused indigenous leaders of being “outlaws,” and identified the lack of presence of the authorities as the cause of the problems in the two blocks. The Minister of Environment has responded by calling for police presence in the area.
These statements have human rights advocates in Ecuador concerned that the force majeure ruling is the beginning of an intimidation campaign by the companies and their allies in government, to force the indigenous communities to accept oil activities in their territories against their will.
In a letter to the newspaper Hoy, Jose Serrano, a lawyer with the Quito-based Center for Economic and Social Rights points out that it is in fact the companies that have not complied with Ecuadorian law. On November 15, 2002 the Civil Commission Against Corruption determined that Burlington had not filled the requirements of its concession contract. In addition, Burlington has violated a constitutional injunction against communication with individual members of the Shuar federation, a practice that Shuar leaders say is meant to divide their people. Serrano points out that CGC has violated the terms of a federal injunction relating to its operations in block 23, and asks “Who are the real outlaws?” in these cases.
At stake in this struggle are the basic rights of indigenous people of the Amazon. These communities have said “No” to oil development on their lands. Will their wishes be respected? Or will excuses be found for militarizing these communities in order to pave the way for oil companies to operate?
We have seen such militarization many times before. ChevronTexaco, which controls 50% of block 23, has direct experience. It is a defendant in a lawsuit in the U.S. brought against it for its role in requesting and facilitating action by the Nigerian military which led to the deaths of two peaceful protestors against Chevron. Texaco was the company whose operations led to massive contamination of the northern part of the Ecuadorian Amazon. Texaco is also a defendant in a lawsuit for that contamination and resulting impacts on the health and livelihood of some 30,000 Ecuadorian Indians and campesinos. (Chevron and Texaco announced their merger in October 2000.)
The situation in Blocks 23 and 24 can go in a number of directions. The companies might leave their concessions. The indigenous communities would warmly welcome such a retreat, even if accompanied by unfair blaming of those same communities. But this outcome would not suit the government, since it would mean the loss of revenues guaranteed by the concession contract. There is therefore a strong possibility that the force majeure ruling is a prelude to an effort to divide and conquer the opposition to oil exploitation.
If police or military presence is increased in blocks 23 and 24, the question will be: are they there to protect the oil companies, or the Amazonian people? Will the rights of the communities – including the right to say no to oil development – be respected? Or will the need for oil to pay interest on a crushing external debt trump human rights?
For all the ambiguities and dangers in the current situation, the Ecuadorian government has shown innovation in using the force majeure provision to describe indigenous opposition to violation of their rights. Belatedly, they have officially recognized the movement in defense of indigenous rights as a “major force.” They have recognized that the will of indigenous – communities is “beyond the control” of the government and the oil companies.
What is not clear is whether this major force will be respected or attacked.
Kenny Bruno is the Campaigns Coordinator at EarthRights International.
{mospagebreak heading=Feature&title=Letter to Burlington}
Bobby S. Shackouls
President and CEO
Burlington Resources, Inc.
5051 Westheimer, Suite #1400
Houston, Texas 77056
March 7, 2003
Dear Mr. Shackouls:
Our organization, EarthRights International, is a non-profit group with dual headquarters in Thailand and the United States. Our mission is to use the power of law and the power of people in defense of human rights and the environment. Among the issues we follow closely are conflicts in the Amazon region involving indigenous rights, environmental protection, and extractive industries.
We are writing today regarding recent developments in Block 24 in Ecuador, the oil concession held by your company.
According to a report on March 4, 2003 in the Ecuadorian newspaper Hoy, the Minister of Environment has declared force majeure, to cancel your contractual obligations in Block 24. We would like to know if your company now plans to stop oil activities and leave the area as a result of this declaration.
The same article reports that Rene Ortiz, President of the Association of Oil Companies in Ecuador, says that the problem in Block 24 “is the [lack of] presence of the authorities,” indicating that the Government should control the situation with force. We would like to know if the statement of Mr. Ortiz represents the views of your company.
We are aware that there is an injunction which prohibits your company from contacting individuals from the indigenous communities of Block 24, outside of the official channels of the Shuar and Achuar Federations. We are also aware that there remains considerable tension in the area over the issue of oil development, despite the fact that the legally-recognized representatives of the people have declared their clear opposition to such activities.
We urge you to respect the rights of the indigenous communities and federations in the area of Block 24, and to do whatever is in your power to ensure that no force is used to suppress those rights.
We look forward to your response. Thank you for your attention.
Sincerely,
Katie Redford
Co-Director
Kenny Bruno
Campaigns Coordinator
{mospagebreak heading=Feature&title=Letter to CGC}
Compañia General de Combustibles (CGC)
Santiago Tomas Soldati, President
Juan Bautista de Lasalle 653, Piso 2
1642 - San Isidro
Buenos Aires
Argentina
March 7, 2003
Dear Mr. Soldati:
Our organization, EarthRights International, is a non-profit group with dual headquarters in Thailand and the United States. Our mission is to use the power of law and the power of people in defense of human rights and the environment. We are currently co-counsel in a lawsuit against one of your shareholders, ChevronTexaco, for its alleged complicity in the murders of peaceful protestors and villagers by the military in Nigeria in 1998 and 1999. Among the issues we follow closely are conflicts in the Amazon region involving indigenous rights, environmental protection, and extractive industries.
We are writing today regarding recent events in Block 23 in Ecuador, the oil concession held by your company that includes Kichwa territory and the community of Sarayacu. According to a report on March 4, 2003 in the Ecuadorian newspaper Hoy, the Minister of Environment has declared force majeure, to cancel your contractual obligations in Block 23. We would like to know if your company now plans to stop oil activities and leave the area as a result of this declaration.
In the same article, it is reported that Rene Ortiz, President of the Association of Oil Companies in Ecuador, says that the problem in Block 23 “is the [lack of] presence of the authorities,” indicating that the Government should control the situation with force. We would like to know if the statement of Mr. Ortiz represents the views of your company.
We are aware that there have been human rights violations in Sarayacu and in territories of the Organization of Indigenous People of Pastaza (OPIP), relating to the controversy over oil activities in Block 23. There has been intimidation of OPIP representatives, in connection with their clearly stated opposition to such activities. There is ongoing tension in the area, and we are concerned about what might occur if the wishes and will of the people and their elected representatives are not respected.
We urge you to respect the rights of the indigenous communities and federations in the area of Block 23, and to do whatever is in your power to ensure that no force is used to repress those rights.
We look forward to hearing from you on this matter. Thank you for your attention.
Sincerely,
Katie Redford
Co-Director
Kenny Bruno
Campaigns Coordinator
