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 obligations of a legal contract.
But the Ecuadorian government now uses force majeure to describe legitimate community opposition to oil concessions 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 ongoing 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. (Oil giants Chevron and Texaco merged in 2000.)
This turn of events, in what has been furious struggle between indigenous communities and transnational oil companies, leaves the communities and their supporters wondering if they have won a major victory or are danger of in increasing 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 the Ecuadorian government to carry out oil activities in the areas. It means the determination of the communities -- who have officially decided to oppose oil development in their territories -- will be respected.
"We will say NO forever, we don't want to think about the possibility of oil in the future. We definitely want another kind of future," Achuar leader Santiago Kawarim was quoted as saying by the group Amazon Watch.
But there are reasons to be skeptical. 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," according to Hoy. He says the problems in the two blocks are due to the absence of authorities in the remote rainforest. For his part, 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 campaign by the companies and their allies in government to force the indigenous communities to accept oil development in their territories against their will.
In a letter to 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 an injunction against communicating with individual members of the Shuar federation, a practice that Shuar leaders say is meant to divide their people by offering special deals to some and not others. Serrano points out that CGC has also violated the terms of a federal injunction relating to its operations in block 23.
"Who are the real outlaws?" in these cases, he asks.
At stake 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? human rights advocates wonder.
Oil impacted communities have seen such militarization many times before. ChevronTexaco, which controls 50% of Ecuador's block 23, has been accused before of complicity with military repression in the countries in which it operates. The oil giant is a defendant in a US lawsuit for its alleged role in requesting and facilitating intervention by the Nigerian military, which led to the deaths of two activists peacefully protesting against Chevron.
Meanwhile, Texaco's operations have led to massive contamination of the northern part of the Ecuadorian Amazon. Texaco is also a defendant in a class action lawsuit for that contamination and resulting impacts on the health and livelihood of some 30,000 Ecuadorian Indians and campesinos. Amazon Watch estimates that some 350 open toxic pools still remain in the backyards of many indigenous and forest communities. These pools are festering with cancer-causing chemicals including benzene, toluene, arsenic lead, mercury and cadmium, they say.
"This was an environmental crime of epic proportions that has created a black plague of cancer through the Amazon where ChevronTexaco drilled," said Luis Yanza, a community organizer for the Frente de Defensa de Amazonia, during a San Francisco Bay Area tour last December.
The situation in Blocks 23 and 24 can go in a number of directions. The companies might leave their concessions. The indigenous communities might welcome such a retreat, even they are unfairly blamed for the pull out. 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 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 overshadow 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 violations 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 campaigns coordinator for EarthRights International. Until recently he coordinated the UN campaign for CorpWatch and continues to collaborate with the organization.