the operational choices that must be made according to priorities and the resources available, the
State’s positive obligations must be interpreted in such a manner that an impossible or
disproportionate burden is not imposed upon the authorities. For this positive obligation to arise, it
must be determined that, at the time the events occurred, the authorities knew or should have
known about the existence of a situation that posed an immediate and certain risk to the life of an
individual or of a group of individuals, and that they did not take the necessary measures available
to them that could be reasonably expected to prevent or avoid such risk.307
246. Since the provisional measures were ordered in this case, in June 2005 (supra para. 5), the
Court has noted with particular concern the placement of over 1400 kilograms of high-powered
explosives (pentolite) on the Sarayaku territory, considering that this “constitutes a serious risk
factor to the life and integrity of [its] members.”308 Consequently, the Court ordered the State to
remove the explosive material, a provision that is still in force to date and with which the State has
complied partially (supra paras. 120 and 121). In view of the presence of this material in the
territory, the Sarayaku Assembly decided to declare the area a restricted zone for safety reasons,
prohibiting access to it, a measure that remains in force, even though the area is considered sacred
and an important hunting ground for the Sarayaku.
247. The task of removing the pentolite began in December 2007, after a first cooperation
agreement was signed between the Ministry of Mines and Petroleum and the Sarayaku People to
carry out preliminary work. The work began in July 2009 and consisted solely of actions aimed at
removing the pentolite found on the surface of the Sarayaku territory. To date, the State has
removed between 14 and 17 kilograms of the 150 kilograms to be found on the surface,309 and of a
total of over 1400 kilograms left in the territory. It is worth noting that, upon completion of the
contract with the CGC, it was placed on the record that there were no environmental liabilities
(supra paras. 120 to 123). The presence of explosives has caused evident concern to the Sarayaku
People owing to the risk to their physical safety, 310 and the activation or detonation of these
explosives is, according to the expert witnesses 311 a real and potential possibility.
248. In this case, the oil company, with the State’s acquiescence and protection, cleared trails and
planted nearly 1400 kilograms of pentolite explosives in Block 23, which includes the Sarayaku
territory. Therefore, this has resulted in a clear and proven risk, and it was the State’s responsibility
307
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay, paras. 155 and 166. See also Case of the Pueblo
Bello Massacre v. Colombia. Merits, reparations and costs. Judgment of January 31, 2006. Series C No. 140, para. 123, and
Case of the Barrios Family v. Venezuela, para. 123.
308
Matter of the Sarayaku Indigenous People with regard to Ecuador. Provisional measures. Order of the Inter-American
Court of June 17, 2005, Considering paragraph 12.
309
Cf. Annex 1 of the State’s report of September 21, 2009, submitted to the Court on October 13, 2009 (evidence file,
tome 8, folio 2523).
310
In its last order on provisional measures, the Court assessed positively “that State authorities and the
representatives of the Sarayaku People had entered into agreements for the removal of the explosive material and that the
State has completed a first phase of removal of the explosives that were over the surface of the territory; the Sarayaku
community was informed of this and several coordinated measures were taken in this regard. However, even though the
State has provided explanations about the delay in the adoption of this procedure, this does not justify clearly why the
implementation of the said procedure began more than four years after the Court expressly ordered it. In the particular
circumstances in which these provisional measures were ordered, the protection of the right to life and personal integrity of
the members of the Sarayaku Indigenous Community required and requires, fundamentally, the guarantee that the
explosives will be removed from the territory where the community is settled, because the situation has impeded their
freedom of movement and the use of the natural resources existing in the area. In these circumstances, it is clear that the
main concern, at this moment, is focused on the current and potential risk that the existence of high explosives buried on
their territory entails for the Sarayaku community.” Cf. Matter of the Kichwa Indigenous People of Sarayaku with regard to
Ecuador. Provisional measures. Order of the Inter-American Court of February 4, 2010, considering paragraph 13.
311
Thus, one of the expert witnesses explained that abandoning explosives, with visible detonation cables, poses a
certain danger, because they can be detonated deliberately or accidentally (due to electrostatic causes) (affidavit of professor
Shashi Kanth, Dossier on Pentolite Boosters used in Oil Exploitation. May 25, 2011. South Dakota School of Mines, evidence
file, tome 19, folio 10164). Similarly, expert witness Bill Powers considered that the explosives abandoned on the territory by
the CGC are a “latent danger” for the Sarayaku (affidavit of William E. Powers, engineer. Etapas de Desarrollo de un Campo
Petrolero en la Selva, June 29, 2011, evidence file, tome 19, folio 10103).
70
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents