B. Status of the staff of PMSCs working in Ecuador

26. The Working Group recognizes the sovereign freedom of States in the signing and ratification of treaties and bilateral and multilateral agreements. However, the Working Group draws attention to the need for coherence among the constitutional norms and international obligations. In this regard, the Working Group reiterates that, according to the 1998 Constitution of Ecuador, international treaties have primacy over domestic laws.

27. On 25 November 1999, the Government of Ecuador and the Government of the United States entered into an “Agreement of Cooperation” (hereinafter “Agreement”). The purpose of the Agreement is “the granting of access to and the use of the Ecuadorian air force base at Manta to conduct detection and surveillance operations to curb illegal aerial drugs trafficking.[13] In the Agreement, the “entities of central operations and foreign command” (“entidades del centro operativo de avanzada”, hereinafter COA) are defined as “any individual or juridical person and its employees which have a valid contractual relationship with the United States of America”.[14] The Agreement grants to such entities or individuals a series of privileges: it allows United States personnel, its clerks and the COA entities the access to and use of the Ecuadorian air force base in Manta, as well as to the port of Manta and the facilities related with the base or its vicinity.[15] The Agreement also allows the entrance to and exit from Ecuador for United States personnel working for COA without visa, by only requiring a valid passport.[16] Furthermore, the Agreement discharges all the import and export procedures, tariffs, direct and indirect taxes on products and other goods, as well as on baggage, furniture and other belongings for those serving at the location.[17]

28. The Agreement provides that “the Government of Ecuador shall grant to United States personnel and their dependants in Ecuador a legal status equivalent to that granted to administrative and technical staff of the United States Embassy, in conformity with the Vienna Convention on Diplomatic Relations of 18 April 1961”.[18] The Working Group thus notes with concern the immunity that United States military and civilian contractors enjoy in Ecuador. Although the Agreement excludes civil and administrative immunity in acts carried out outside of service, it requests the prompt handover of suspects to the competent authorities of the United States.

29. Civil society representatives in Ecuador informed the Working Group of the concerns voiced by some Ecuadorian academics and NGOs, who challenge the constitutionality of the Agreement, and that a complaint has been filed to the Constitutional Court in this regard.[19] One major concern expressed by NGOs is that the activities of PMSCs contracted to work in the base, including DynCorp, would not be limited to counter-narcotics tasks provided for in the Agreement, but to include maintenance, operational support, logistical support, crime prevention, intelligence, training (police and military), security of persons of facilities and demining.

30. The Working Group was informed by NGOs that since March 2002, DynCorp was incorporated into the base of Manta, through a contract with the United States Department of State, to provide logistical support to the United States military operating at the base. According to information received, DynCorp provides services, including administration, maintenance of installations, delivery of mail, food and beverages, protocol and transportation.[20] According to public reports, DynCorp in Ecuador employs 137 staff, including 82 Ecuadorians, with their logistical and maintenance work involving 134 foreigners.[21] The Working Group was informed by NGO representatives of an increasing number of United States contractors and military working in the base.

31. The Working Group was further informed by NGOs that on 7 May 2002 a statement of NGOs was published in the Ecuadorian press complaining that DynCorp was carrying out Manta-based counter-insurgency and anti-drug operations, which should be undertaken exclusively by agents of the United States army operating in Manta, and not by private contractors. As a result, NGOs informed the Working Group that the (then) Minister for Defence, Mr. Hugo Unda, and members of the Combined Command of the Military Forces, testified before the Commission of International Matters of the Congress. In this testimony, the authorities are reported to have explained that the activities carried out by DynCorp from the airbase at Manta were only anti-drug activities, with the United States Embassy in Ecuador also having certified that DynCorp carried out exclusively administrative and logistical tasks, i.e. not military tasks.[22]

Date: 2015-12-24; view: 689