TRINITY COLLEGE LAW REVIEW ONLINE

THE WITHDRAWAL OF THE AERIAL

HERBICIDE SPRAYING CASE FROM THE
INTERNATIONAL COURT OF JUSTICE – A
LOST OPPORTUNITY FOR INTERNATIONAL
ENVIRONMENTAL LAW?

HANNAH MARSHALL*

Introduction
The case of Ecuador v Colombia,1 known generally as the Aerial
Herbicide Spraying Case, was eagerly awaited as a decision which
would either “challenge an international drug ring that has terrorized
Colombia for decades, or address human rights and environmental
issues presented from a neighbouring state.”2 Ultimately, however,
what was hoped would be a strong judgement by the International
Court of Justice (ICJ) was not to be: the case was removed from the
ICJ’s list on 9 September 2013 following a settlement agreement
between both states, involving a ten kilometre no-spray buffer zone
along the Ecuadorian-Colombian border.3 This article will first
outline the background and international agreements allowing
Ecuador to initiate proceedings in the Aerial Herbicide Spraying
Case, followed by a brief review of the existing decisions of the ICJ
*
Junior Freshman LLB (Law and Politics) Candidate, Trinity College Dublin.
1
Aerial Herbicide Spraying Case (Ecuador v Colombia) (Application Instituting
Proceedings) Pleading, 2008 ICJ (31 March 2008)
<http://www.icj-cij.org/docket/files/138/14474.pdf > (visited 9 January 2016)
[hereinafter Application Instituting Proceedings].
2
Jessica Rutledge, “Wait a Second – Is That Rain or Herbicide – The ICJ’s Potential
Analysis in Aerial Herbicide Spraying and an Epic Choice Between The Environment
and Human Rights” (2011) 46 Wake Forest L Rev 1079.
3
Case removed from the Courts List at the request of the Republic of Ecuador
(Ecuador v Columbia) Press release 2013/20
<http://www.icj-cij.org/docket/files/138/17526.pdf> (visited 9 March 2016).
 TRINITY COLLEGE LAW REVIEW ONLINE

on international environmental law. It will be argued that, though the

withdrawal of the case may be seen as a win for Ecuador in coming
to a speedy resolution of its claim and in receiving monetary
compensation from Colombia, it may also be viewed as a lost
opportunity for international environmental law.

I. Background
Colombia has been engaged in efforts to combat and eradicate illicit
coca crops4 for decades.5 In order to understand the position of
Ecuador and Colombia on aerial herbicide spraying, it is important
to put the case into context. The political situation in Colombia
involves a number of dominant guerrilla groups fighting for
economic, social and political power, one of which is the
Revolutionary Armed Forces of Colombia (FARC). 6 The FARC
obtains substantial funding by taxing farmers growing illicit narcotic
crops. Colombia has long been one of the world’s primary producers
of coca and poppy, and in 2008, more than 55% of the world’s coca
was being grown in Colombia.7 Although Colombia has been using
aerial herbicide spraying since the 1980s, large-scale aerial
fumigation began in 2000 under the US funded “Plan Colombia” 8, in
order to stem the flow of finance to guerrilla groups like the FARC.
The aerial herbicide spraying is concentrated in the southwest
regions of Putumayo and Nariño, which have borders with
Ecuador’s northern provinces of Esmeraldas, Carchi and Sucumbíos,
which are home to the Awá indigenous population.
Ecuador complained that the herbicide drifted into Ecuadorian
territory, with the aircrafts flying into Ecuadorian air space on
several occasions causing “serious damage to people, to crops, to
animals, and to the natural environment, [posing] a grave risk of

4
Cocaine is a naturally occurring alkaloid of the coca plant, synthesized from its
leaves.
5
Robert Esposito, “The ICJ and the Future of Transboundary Harm Disputes: A
Preliminary Analysis of the Case Concerning Aerial Herbicide Spraying (Ecuador v
Colombia)” (2010) 2 (1) Pace Int L Rev Online Companion 8.
6
William D Shingleton, “Understanding Colombia” (2001) 25 Fletcher F World Aff
255, at 256.
7
United Nations Office on Drugs and Crime, World Drug Report (2008), EM Vol II,
Annex 26 at 13.
8
For an overview, see Plan Columbia, Bogotá Columbia - Embassy of the United
States < http://bogota.usembassy.gov/plancolombia.html> (visited 9 March 2016).
 TRINITY COLLEGE LAW REVIEW ONLINE

further damage over time.”9 As a result, Ecuador seized the ICJ of

the case against Colombia on March 28 2008, requesting a judgment
to the effect that:

Colombia has violated its obligations under international

law…Colombia shall indemnify Ecuador for any loss or
damage caused by its internationally unlawful acts…and
Colombia shall prohibit the use, by means of aerial dispersion,
of such herbicide in Ecuador, or on or near any part of its
border.10

Shortly after the aerial herbicide sprayings began in 2000, numerous

cases of people suffering from skin and eye problems, nausea, fevers
and further medical conditions, were reported in the communities of
Carchi, Esmeraldas and Sucumbíos. Additional damage to crops,
which are the communities’ main food source, and animals was also
reported.11
The Colombian government have refused to provide Ecuador
with the exact ingredients or composition of the herbicide in
question, although they have disclosed the primary ingredient as
glyphosate.12 Glyphosate is a non-selective herbicide which kills any
plant or crop it comes into contact with by inhibiting the plant’s
ability to produce essential amino acids for survival.13
Ecuador had made repeated efforts to negotiate with Colombia
on the issue of aerial herbicide spraying and its effects in Ecuadorian
territory. There were several attempts to come to an agreement from
the Ecuadorian side that were repeatedly refused by Colombia. 14
These attempts began in 2000, immediately after the beginning of
the spraying.15 They include requests for information regarding the
9
Application Instituting Proceedings, note 1, at [4].
10
Ibid., at [26].
11
Ibid., at [10].
12
Ibid., at [14].
13
Laurel Sherret, “Futility in Action: Coca Fumigation in Colombia” (2005) 35
Journal of Drug Issues 151.
14
Diplomatic Note VRE 32759, sent from the Ministry of Foreign Affairs of
Colombia to the Embassy of Ecuador in Bogotá (23 Sep 2003), Memorial of Ecuador,
Vol. II, Annex 48 <http://www.icj-cij.org/docket/files/138/17542.pdf> (visited 9
March 2016).
15
Diplomatic Note 12437-47 SP/DGA/DTANC, sent from the Ministry of Foreign
Affairs of Ecuador to the Embassy of Colombia in Quito (24 July 2000), Memorial of
Ecuador, Vol. II, Annex 36, <http://www.icj-cij.org/docket/files/138/17542.pdf>
 TRINITY COLLEGE LAW REVIEW ONLINE

composition of the herbicide, request for notification from Colombia

prior to spraying, a request for manual spraying, a meeting to
evaluate the effects, and a request for a ten kilometre exclusion zone
at the border.16 Each of these attempts was met with either a refusal
or no response.17

II. The Legal Grounds for Initiating Proceedings

The legal documents that Ecuador relied upon to establish the
jurisdiction of the ICJ in this case included the Statute of the
International Court of Justice 1945, the American Treaty on Pacific
Settlement 1948, and the 1988 United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances.18
Article 36(1) of the Statute of the International Court of Justice
provides that “[t]he jurisdiction of the Court comprises all cases
which the parties refer to it and all matters specially provided for in
the Charter of the United Nations or in treaties and conventions in
force.”
Ecuador relied further on Article XXXI of the American
Treaty on Pacific Settlement, (the Pact of Bogotá), which provides:

In conformity with Article 36, paragraph 2, of the Statute of

the International Court of Justice, the High Contracting Parties
declare that they recognize in relation to any other American
State, the jurisdiction of the Court as compulsory ispo facto,
without the necessity of any special agreement so long as the
present Treaty is in force, in all disputes of a juridical nature
that arise among them concerning:

a) The interpretation of a treaty;

b) Any question of international law;
c) The existence of any fact which, if established, would
constitute the breach of an international obligation;
(visited 9 March 2016).
16
Diplomatic Note 55416/2001 - GM/SOI/SSN, sent from the Ministry of Foreign
Affairs of Ecuador to the Ministry of Foreign Affairs of Colombia, 2 July 2001,
Memorial of Ecuador, Vol. II, Annex 41
<http://www.icj-cij.org/docket/files/138/17542.pdf > (visited 9 March 2016).
17
Application Instituting Proceedings, note 1, at [22].
18
United Nations Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances 1988.
 TRINITY COLLEGE LAW REVIEW ONLINE

d) The nature or extent of the reparation to be made for

the breach of an international obligation.

Article XXXI of the Treaty provides also for jurisdiction of the

International Court of Justice in “any question of international law”
and one in which “the existence of any fact which, if established,
would constitute the breach of an international obligation.”
Ecuador also referred to Article 32 of the 1988 United Nations
Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances as a basis for the jurisdiction of the
International Court of Justice, which states that any dispute between
parties which cannot be settled by “negotiation, enquiry, mediation,
conciliation, arbitration, recourse to regional bodies, judicial process
or other peaceful means of their own choice” shall be brought to the
International Court of Justice by either of the disputing parties.
Based on the above provisions, Ecuador succeeded in establishing
the jurisdiction of the ICJ in the Aerial Herbicide Spraying Case.
The jurisdiction of the Court was not challenged by Colombia.19

III. International Decisions on International

Environmental Law
The war on drugs is inextricably linked with environmental issues.
This is highlighted by Article 14(2) of the United Nations
Convention Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances 1988, which provides that any action taken
by States to combat the growth and cultivation of illicit narcotic
crops must “respect fundamental human rights…and the protection
of the environment.” Determining the exact extent to which
international environmental law must be taken into account by states
engaging in measures to combat trade in illicit narcotic crops on
their territory is not helped by the fact that international
environmental law is comprised of “a haphazard collection of
treaties, customary law, and general principles that have developed
over time.”20 It is therefore difficult to clearly identify the
obligations on states in relation to environmental protection or
preservation, and states are “arguably not bound by many of the
19
Reply of Ecuador (Ecuador v. Colombia) January 2011, Vol I, at [1.16]
<http://www.icj-cij.org/docket/files/138/17554.pdf> (visited 9 March 2016).
20
Rutledge, note 2, at 1083.
 TRINITY COLLEGE LAW REVIEW ONLINE

requirements.”21 The following section aims therefore to provide a

brief overview of the area.

The first important development in international

environmental law was made in the Trail Smelter Case22, which
confirmed that transboundary environmental harm was under the
jurisdiction of the ICJ. It was the first case before the ICJ in which a
State was held legally responsible for causing transboundary harm:

[N]o State has the right to use or permit the use of its territory
in such a manner as to cause injury… in or to the territory of
another or of the properties or persons therein, when the case
is of serious consequence and the injury is established by clear
and convincing evidence.23

Although the ICJ is not bound by its own previous decisions, the
judgment of the Court in the Trail Smelter Case was followed in
subsequent cases including the Corfu Channel Case24 in which the
Court’s view on respect for national sovereignty is emphasised:
“[b]etween independent States, respect for territorial sovereignty is
an essential foundation of international relations.”25
The boundaries of international environmental law were
further developed in the Advisory Opinion of the ICJ on “Legality
on the Threat or Use of Nuclear Weapons”, where it was asserted
that:

The existence of the general obligation of States to ensure that

activities within their jurisdiction and control respect the
environment of other States or of areas beyond national
control is now part of the corpus of international law relating
to the environment.26

21
Ibid.
22
Trail Smelter Arbitration (United States v Canada) 3 RIAA 1905 at 1941.
23
Ibid., at 1965.
24
Corfu Channel case (United Kingdom v Albania) (Judgment) [1949] ICJ Rep 4.
25
Ibid., at 35.
26
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ
Rep 226, at 242.
 TRINITY COLLEGE LAW REVIEW ONLINE

This recognition of customary international law as including the

“prevention of transboundary harm arising from hazardous
activities”27was confirmed in the Gabčikovo-Nagymaros case.28
Finally, the Pulp Mills Case29 was an important development in
international environmental law, as it established that States have an
obligation to inform, notify and cooperate on environmental matters
“grounded in principles of prevention and due diligence.” 30 This
principle is especially important in the analysis of the Aerial
Herbicide Spraying Case, as, in applying this principle, Colombia
would have had a duty to notify Ecuador of the possible damage the
aerial herbicide spraying could cause, something Colombia failed to
do on several occasions from 2000 to 2007. The Pulp Mills Case
also developed and strengthened the principle that States must not
only refrain from causing transboundary harm, but also use “all
means at their disposal”31 to avoid it.32

IV. The Withdrawal of the Aerial Herbicide Spraying Case: a

missed opportunity?

The Aerial Herbicide Spraying Case was withdrawn from the list of
the ICJ by Ecuador following an agreement reached by both parties.
Colombia did not officially admit liability, but agreed to pay fifteen
million dollars to Ecuador with the aim of stimulating economic
activity in the border areas of Ecuador. Further, a ten-kilometre
exclusion zone was set up at the Ecuador-Colombia border within
which no aerial fumigation was to occur. The agreement also
established a joint commission with the purpose of establishing that
no herbicide would drift into Ecuador from Colombia from outside
the exclusion zone. Based on the commission’s findings, the
agreement allows for a gradual reduction in the area of the exclusion

27
Paola Solano, “Colombia Herbicide Spraying in the Crucible Between Indigenous
Rights, Environmental Law and State Security” (2014) 9 Intercultural Human Rights
L Rev 271, at 289.
28
Gabčikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7.
29
Pulp Mills on the River Uruguay (Argentina v Uruguay), (Judgment) [2010] ICJ
Rep14
30
Rutledge, note 2, at 1095.
31
Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep
14 at 56.
32
Rutledge, note 2, at 1095.
 TRINITY COLLEGE LAW REVIEW ONLINE

zone. The agreement fully and finally resolves all of Ecuador’s

claims against Colombia.
This may be regarded as a win for Ecuador. But what would
the outcome have been had the case proceeded before the ICJ? In
this respect, it should be noted that Colombia neither prepared or
delivered an Environmental Impact Assessment to Ecuador, nor did
it not notify Ecuador prior to spraying. The State refused to inform
Ecuador of the exact ingredients of the herbicide spray 33 and
evidently did not use “all means at its disposal” to avoid
transboundary environmental harm. This is clear in view of its
choice of a non-selective herbicide, the fact that its chosen dispersal
method is recognised to be extremely inaccurate and imprecise, and
considering the occasions upon which the aircrafts flew into
Ecuadorian air space.34 Because of this, it is submitted that it would
have been very likely that, had the case proceeded, the Court would
have found in favour of Ecuador, finding that Colombia had violated
international law, and was therefore liable to Ecuador in damages.
Based on this, it is further submitted that the Aerial Herbicide
Spraying Case would have developed and reaffirmed the principles
outlined in the Pulp Mills Case. Because of the competing concerns
demonstrated in the case between environmental and human rights
protection on the one hand, and the necessity of facilitating the
efforts of States to eradicate trade in illicit drugs on their territory on
the other, the case had the potential to finally “clarify the issue of the
level of environmental damage from atmospheric forms of pollution
that is actionable under international law” 35 and thus become an
instrumental precedent in the international environmental law
jurisprudence of the ICJ. Further development of the scope of the
necessity defence would also have been provided by a judgment in
this case as an aspect of Colombia’s defence would likely have
included that “the drug trade and guerilla activity created a situation
of necessity that demanded a response and excused their procedural
and substantive internationally wrongful acts.”36

33
Memorial of Ecuador (Ecuador v Colombia), April 2009, Vol. 1, at [2.38],
<http://www.icj-cij.org/docket/files/138/17540.pdf> (visited 12 March 2016).
34
Solano, note 27, at 302.
35
Philippe Sands and Jacqueline Peel, Principles of International Environmental Law
(3rd ed., Cambridge University Press, 2012), at 242.
36
Rutledge, note 2, at 1110.
 TRINITY COLLEGE LAW REVIEW ONLINE

Conclusion
Although the fact that an agreement was reached between Ecuador
and Colombia is to be viewed positively, the issue remains that
international environmental law is lacking in the domain of
transboundary pollution and environmental harm. A judgement in
the case would also have provided the ICJ with the chance to
determine the priorities of international law in the choice between
combatting the war on drugs or acting to prevent environmental
harm and human rights violations arising from transboundary
pollution. It is easily understood why Ecuador might have preferred
to negotiate an agreement with Colombia out of court, in order to
come to a speedy solution. However, had the ICJ had the
opportunity to give judgement in the case, greater benefits may have
been realised for the international community as a whole. The
settlement itself may prove to be potentially problematic for
Ecuador, as it provides the possibility of reducing the ten kilometre
exclusion zone to two kilometres within two years.37 This could see
Ecuador essentially facing the same problems as they did ten years
ago, rendering irrelevant any developments made to date. An ICJ
judgment, by contrast, would have been binding upon both parties,
and were Colombia to have failed to comply with the judgment,
Ecuador could have had recourse to the United Nations Security
Council for the enforcement of the judgment. 38 In the absence of a
judgment, this option is closed to Ecuador and they ultimately have
little option for recourse should Colombia fail to comply with the
settlement. Though the resolution of the claim is of mutual benefit to
both parties, it is arguable that the both Ecuador and the
development of international environmental law generally would
have benefited from the clarity and legal certainty a written
judgement by the ICJ would have provided, if the case had been
allowed to proceed. For this reason, it is submitted that the
withdrawal of the Aerial Herbicide Spraying Case from the ICJ’s list
is to be viewed as a lost opportunity for international environmental
law.

37
Agreement between the Republic of Ecuador and the Republic of Colombia, 9
September 2013, <http://cdn.ipsnoticias.net/wp-content/uploads/2013/10/Acuerdo-
glifosato-Ecuador-Colombia.pdf> (visited 14 March 2016).
38
Article 94 (2), Charter of the United Nations.