Ecuador Wins Favorable Settlement from Colombia, Terminates Aerial Spraying Case in International Court of Justice

September 19, 2013

Ecuador announced the achievement of a highly favorable settlement agreement with Colombia, terminating a longstanding lawsuit over aerial fumigation by Colombia along the common border that destroyed crops, killed livestock and sickened rural farmers in Ecuador. Ecuador called the agreement a complete victory that “fully achieved all of the objectives” of the longstanding case in the International Court of Justice in The Hague. The case, which was brought by Ecuador in 2008, was settled on the eve of final hearings before the ICJ, also known as the World Court.

Paul Reichler, a senior partner at Foley Hoag LLP in Washington, DC, and lead counsel to Ecuador in the case, congratulated Ecuador’s Attorney General and Foreign Minister for their successful negotiation of the settlement agreement. “Ecuador negotiated an agreement that is as favorable as a victory in Court.”

Reichler explained: “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.” He continued: “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.”

The Colombian national police and private contractors have used airplanes to spray highly toxic herbicides over suspected coca plantations to eradicate illicit drugs. But the manner in which pilots carry out these operations has been criticized by Ecuador, human rights organizations, and United Nations special observers, all of which accused Colombia of recklessly injuring innocent farmers and their legitimate crops and causing grave environmental harm in both Colombia and across the border in Ecuador.

Under the agreement, Colombia will be prohibited from spraying within 10 km of the border with Ecuador, a distance that may be gradually reduced if Colombia complies with the agreement’s restriction on spray flight operations and no spray drifts into Ecuador. Colombian pilots must now observe strict limitations on the height and velocity of spray flights, the composition of the spray, and the amount deposited per hectare. Colombia must also refrain from spraying when winds or ambient temperatures are above designated levels, to further assure that no spray drifts into Ecuador.

Foley Hoag represents States in litigation and arbitration before the International Court of Justice and other international judicial and arbitral tribunals. The firm represented Nicaragua in its victory over Colombia last year, in which the Court awarded Nicaragua, by unanimous vote, 80% of the maritime area in the western Caribbean Sea disputed by the two States. Reichler was one of Nicaragua’s advocates in that case.

Ecuador’s international legal team included, in addition to Reichler, Foley Hoag attorneys Lawrence Martin, Andrew Loewenstein, Adam Kahn, Clara Brillembourg, and Cicely Ott Parseghian; Professors Philippe Sands of University College London and Alan Boyle of the University of Edinburgh; and Ecuadorian attorney Iñigo Salvador. Ecuador’s Agent was its Attorney General, Dr. Diego Garcia Carrión. The agreement was signed by Foreign Minister Ricardo Patiño and his Colombian counterpart, María Ángela Holguín Cuéllar.