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The age of mass torts arrived with
Bhopal Gas Tragedy unveiling the environmental disasters with toxic
invasions, and unfortunately, it continues. . The multinationals, which
entered the 'developing world' as harbingers of profit and gain were in
fact, brought the death demon, the Union Carbide which authored the
tragedy thought it could wash off its hands by selling the abandoned
Bhopal plant to Dow Chemicals, even as it emanate the poisonous gases
and continue to cause enormous damage to the environment. It is not
known with great certainty the figure of casualties and injured persons
it is not possible to measure up the real damage to the environment
which appear as on today as eternal.
It is shocking that the Dow
Chemicals claimed the remainder of the Relief Fund carved out of the
settlement between the Government of India and Union Carbide for
cleaning up the environmentally hazardous pollution emanating from the
abandoned unit of the factory at Bhopal. The balance of the hitherto
undistributed compensation has accumulated interest and grown to Rs.
1,505 crores. (some $327 million).
Very appropriately, the Supreme Court on 19 July, 2004 ordered the
Government of India to distribute the balance of compensation remaining
from Union Carbide's settlement among the 566,876 Bhopal survivors whose
claims have been successfully settled.
Survivors whose claims may have been
wrongly dismissed or who were underpaid were directed by the court to
file a separate application, and seek compensation from the Government
of India. The average payout will still only amount to $570 per person
which, despite Dow-Carbide's now famous dictum that "$500 is plenty good
for an Indian", comes nowhere near meeting the costs of medical
treatment that survivors have already had to fund for themselves, much
less compensating for two decades of illness, loss of livelihood and
fear for what new horrors may emerge in their bodies.
It is a further setback for the
Dow-Carbide corporation and its political accomplices in India, who are
on record as demanding that this money, meant for the relief of the
survivors, should be used to clean up the company's abandoned and
polluted factory in Bhopal. Last month, the Government of India threw
its weight behind a court action to force Dow-Carbide to bear the full
costs of cleaning the plant.
The Government of India has decided
to convey the "No Objection" to the US Court of Appeals to consider
environmental contamination claims unrelated to the Bhopal Gas Leak
Disaster as defined in section 2(a) of the Bhopal Gas Leak Disaster
(Processing of Claims) Act 1985.
The issue pertains to a civil
proceeding instituted in 1999 by some of the Bhopal based NGOs including
that of Hasina Bi"s claims and affected persons in the US District Court
for the Southern District of New York seeking relief under the Alien
Tort Claims Act of New York against Union Carbide Corporation and Mr.
Warren Anderson for causing personal injury as well as damage to the
property. The suit was dismissed by the District Court on August 28,
2000 on the grounds that the plaintiff lacked standing to bring the
action and that their claims were barred by 1989 settlement in the
Supreme Court of India. Being aggrieved by the dismissal of their suit,
the plaintiff filed an appeal before the Second Circuit Court of
Appeals. The Court of Appeals heard parties in detail and after taking
into account all the relevant facts, remanded the case by its order
dated 17.3.04 to the District Court to consider certain aspects afresh.
As is clear from the order of the
Court of Appeal the claim for site remediation can be taken up by the
District Court to which the case stands remanded only if the Indian
Government or the State of Madhya Pradesh seeks to intervene in the
action or otherwise urges the Court to order such relief.
The views of Madhya Pradesh
Government have also been obtained and who have also conveyed their "No
Objection" in the matter with certain conditions. The "No Objection"
given by the Government of India gives its consent to the US Court to
direct the Union Carbide Corporation to clean up the mess it left behind
in its plant in Bhopal, as the plant, which was operated by Union
Carbide India Limited (UCIL) a wholly owned subsidiary of the
multinational Union Carbide Corporation (UCC), closed down in December
1984 following the leak of tonnes of methyl isocyanate that led to the
death of thousands of people.
The union of India made it clear
that neither the Madhya Pradesh State Government or its
instrumentalities nor the Union of India has any objection to any relief
for environmental remediation of the former Union Carbide plant premises
in Bhopal being ordered or directed by a competent court or tribunal of
the United States, as pleaded by the representatives of the victims of
the tragedy. The Union of India made such a submission to the Court in
US. Further, the Union of India and the Madhya Pradesh State Government
and their respective instrumentalities, expressed their will to
cooperate with any such relief as and when issued by the United States
District Court. The Union of India will monitor and supervise such
environmental remediation including decommissioning of plant and
machinery, remediation / disposal of contaminated soil and appropriate
disposal of toxic chemicals and wastes on the plant site by Union
Carbide in order to ensure that it is undertaken in compliance with the
norms parameters laid down by a specific organization of the Government
of India, the Central Pollution Control Board, for that purpose.
However the Union of India was
categorical in its commitment that the Union Carbide will also be held
responsible for any loss/damages caused to life or property in the
process of remediation and disposal. Pursuant to the "polluter pays"
principle recognized by both the United States and India, Union Carbide
should bear all of the financial burden and cost for the purpose of
environmental clean up and remediation. The Union of India and the State
Government of Madhya Pradesh, the submission stated, shall not bear any
financial burden for this purpose.
Criminal Liability and the Dow Chemicals
Presently, Union Carbide is charged with culpable homicide and India is
trying to extradite former Union Carbide CEO Warren Anderson to stand
trial. The company, which owned 50.9 percent of UCIL, severed its
relationship with UCIL in 1994 and has argued that it has no legal
obligation to conduct or finance the clean-up. However, under Indian law
Dow not only bought the assets, but also the liabilities, of Union
Carbide and can therefore be held to account.
The Chief Judicial Magistrate's court in Bhopal, India, may very soon
decide whether it will force Dow Chemical to send former Union Carbide
officials to India to stand trial for the 1984 gas leak that has killed
and injured over 60,000 people .
Dow is currently under pressure to set aside assets to settle
potentially crippling liabilities from risks associated with its
production and use of asbestos, Agent Orange, and dioxin contamination
in rivers in Michigan. In December 2002, Dow disclosed that the
long-term costs associated with Union Carbide's asbestos liability could
be $2.2 billion, and it took an immediate charge of $828 million to its
accounts. At the end of 2003, Dow had accrued obligations of $381
million for environmental remediation and restoration costs.
The Dow Chemicals has denied that it has any further liability for the
disaster, and considers the matter closed, arguing that a settlement for
claims was reached in accordance with Indian law 15 years ago. However,
since 1992, Union Carbide has been lambasted as an absconder from
justice because India's criminal proceedings into the tragedy have
effectively been crippled by the continued non-attendance of the key
accused - Union Carbide Corporation, Union Carbide Eastern and Warren
Anderson, the parent company's chairman.
Bhoposhima: the Disaster Exported to India
While third world countries expected that foreign investments would
bring them avenues of employment, they brought unending misery and
pollution. Veiled threats reached the government, the media and the
legal institutions that imposing severe penalties on the MNC would deter
other multinational players from entering the Indian Market, a
possibility that was projected as dire. If the transferring MNC was to
be let off lightly, it would send out signals that life was cheap in the
developing world, and that profits could be essayed at the risk of death
and disaster. UCC tried to shift blame saying it was local negligence
and not design defect.
There can be no other live example of death demon than one created by
MNCs of developed nations is the Bhopal massacre caused by UCC. The
death, disaster and dreadful conspiracy to exploit human labour in India
and to unhesitatingly pollute the environment can be seen from the
pathetic tragedy in Bhopal.
Bhopal Gas Tragedy is described as another Hiroshima of the Chemical
Industry" one of the worst commercial industrial disasters in history,
while Krishna Iyer preferred to call it Bhoposhima, a major disaster
killing thousands of people as a consequence of corporate delinquency.
The tragedy was described in different terms such as: accident,
disaster, catastrophe, crisis and also as sabotage, conspiracy,
massacre, and experiment, whichever best suited the arguments that would
help to pin the 'blame' on somebody. In his book titled 'The Bhopal
Tragedy: Language, Logic and Politics in the Production of a Hazard',
the author William Bogard "Each of these descriptions, in its own way,
minimizes the problem of human agency and intention, and thus refuses to
address directly the issue of responsibility. " Bogard goes on to point
out that the best way to describe this incidence would be a tragedy
because, "In calling Bhopal a tragedy, we are still permitted to say
that intention and agency were involved in how the event unfolded and
that responsibility must ultimately rest with someone or some group. But
unlike saying that Bhopal was the deliberate result of sabotage, a
conspiracy, or some diabolical experiment involving human guinea pigs-
charges that are virtually impossible to prove in any case- a tragedy,
in contrast, emerges out of a complex of confused and misguided
intentions, many of which may be honorable in themselves but when forged
to the actual chain of events produce the worst possible outcome. "
Massive poisoning
The facts and figures of the accident are as follows:
The Day: After 2nd December midnight, 3rd of December, 1984
The Time: Around 1 a.m. on Monday
The Place: Bhopal, a densely populated region in the city of Bhopal,
The Poisonous Gas: A poisonous vapor, a highly toxic cloud of methyl
isocyanate, burst from the tall stacks.
The Corporate Villain: The Union Carbide pesticide plant.
Immediate deaths: 2000
Injured people: 3,00,000
Injured animals: 7000, of which 1000 killed.
On the night of December 2-3, 1984 a gas leak at a small pesticide plant
in Central India owned by a subsidiary of Union Carbide Corporation
devastated a whole city Over 90% of the worst affected people were the
poor living in the close vicinity of Bhopal's industrial area. The job
of the police who went to lower class localities was clearly defined:
Open doors to one-room tenants; and pull out bodies five, six, seven.
Anees Chisti, a journalist who witnessed the tragedy first hand states,
"after a while we began to devalue the meaning of death. On seeing
another dead body, all one felt was a twinge of sadness, rather like
what one feels when an Indian batsman walks back to the pavilion".
Unending Sufferings
"A series of studies made five years later showed that many of the
survivors were still suffering from one or several of the following
ailments: partial or complete blindness, gastrointestinal disorders,
impaired immune systems, post traumatic stress disorders, and menstrual
problems in women. A rise in spontaneous abortions, stillbirths, and
offspring with genetic defects was also noted." (The Bhopal Disaster)
Pratima Ungarala referred a document, titled Union Carbide: Disaster at
Bhopal , was authored by the retired Vice President of Health, Safety
and Environmental Programs in Union Carbide Corporation, and several
other papers to rhetorically analyze and also and to explore the various
image restoration strategies that Union Carbide Corporation used through
the course of the crisis.
About 300,000 more would suffer
agonising injuries from the disastrous effects of the massive poisoning
while none could say if future generations would be affected. Forty tons
of toxic gases were released from Carbide's Bhopal plant and spread
throughout the city. The cause was the contamination of Methyl
Isocyanate (MIC) storage tank No. 610 with water carrying catalytic
material. The result was a nightmare that still has no end. Residents
awoke to clouds of suffocating gas and began a desperate flight through
the dark streets. No alarm ever sounded a warning and no evacuation plan
was prepared. When victims arrived at hospitals breathless and blind, do
doctors did not know how to treat them since Carbide had not provided
emergency information. But it was only when the sun rose the next
morning that the magnitude of the devastation was clear. Dead bodies of
humans and animals blocked the streets, leaves turned black, the smell
of burning chilli peppers lingered in the air. Responsible estimates
suggest that as many as 10,000 may have died immediately. The precise
number of deaths still remains a mystery. 2,000,00 were injured and
30,000 to 50,000 were too ill to ever return to their jobs. This is the
Hiroshima of chemical industry.
Invasion of
Death Demon:
The demon of death silently invaded millions of hearts and lungs without
knocking the doors during the midnight of 2nd and 3rd December 1984, in
Bhopal. It is not only future generation being deprived of the healthy
nature but an MNC leaked poisonous gas was decimating the natural life
of the present and future. Over 16000 children,
men and women were laid dead and more than five lakhs were maimed.
During maintenance operations in the Methyl-Iso-Cyanide MIC plant a
large quantity of water entered one of the storage tanks containing 60
tons of MIC, triggering off a runaway reaction. A deadly cocktail of MIC
and other chemicals such as Hydrogen Cyanide and Phosgene was carried by
the northerly wind to the neighboring communities. People woke up with
invisible clouds of poison gas, stinging eyes and burning throats. The
suffocating gas invaded lungs and created enormous fluids inundating the
lives with their own body fluids. Running here and there for life did
not save their lives, as the killer gas was all pervading.
A small leak at 11.00 pm occurred from MIC storage tank 610. Workers
noticed it but thought to be a normal and small leak, source of which
could not be located. The sting of MIC was getting stronger and the
temperature and pressure were rapidly rising in tank. At around 12.30 a
gigantic hiss came out, a runaway chemical chain reaction, triggered by
the entrance of water, and created a tremendous heat and pressure. Forty
tons of deadly gases burst past the rupture disc, overwhelmed the
plant's safety systems, and shot into the atmosphere. Most of the
workers fled in panic. Larry Everest narrated (at page 12 of his book)
"Throughout the slums and shanty settlements that surround the Union
Carbide plant on three sides, thousands were awakened by the
suffocating, burning effects of the gas, the cries of neighbours, the
clamor of running, stumbling feet, or by the howls of animals in their
death throes. Mothers did not know their children had died. Children
didn't know their mothers had died. Men did not know their whole
families had died. Anyone who was left alive ran away blindly." The
toxic cloud was so dense and searing that people were reduced to near
blindness in their rush through narrow, ill-lit alleys. Some who managed
to hand onto life panicked, leaving loved ones behind. Families who
tried to stay together were often separated momentarily in the blinding
gas and then unable to regroup. Soon there was a massive exodus away
from the Union Carbide Factory, now a fount of death, a stream of
humanity of tens of thousands strong-walking, running, clinging to
taxis, trucks, three wheeled autorickshaws or any other means of escape
they could find. Bhopal looked like a battle zone in a chemical war. It
was littered with the dead-lying in alleys, ditches, roadways, or still
trapped in their huts, in the contorted positions of sudden death. They
lay intermingled with the goats, cows, sheep, and other animals that had
also perished. The gas cloud had devastated everything living in its
path, even killing plants and turning leaves black. People were just
lying on the road like dogs and cats. The survivors wandered among the
carnage desperately seeking family and loved ones they had lost in the
chaotic night. The total number of died may never be known. People
continue to die from the effects of the gassing. Estimates of the number
severely debilitated run as high as 60,000. And one can only speculate
on what the long-term effects of such a massive exposure to toxins will
be. There were mounting incidents of spontaneous abortions and
stillbirths. Thousands could not work. All in all it was the worst
industrial disaster in history.
Disaster
for the Environment
The Bhopal disaster which killed several thousand people and injured
another two lakhs in the space of a few hours, constitutes a watershed
in the history of the chemical industry.
The first of the autopsies revealed that the human blood had turned
purple red, the lungs had become ash colour and filled with their own
secretions. The tracheas were so dry that the mucous flaked off on
touch. Sometimes the blood was so thick that if you dipped your finger
in it and lifted it, it would come off like a wire.
The gas leak saw thousands blinded, breathless and giddy, flooding the
hospitals, carrying those who had collapsed along the way. In cases of
acute exposure, victims had suffered extensive damage to their lungs.
Those who did not succumb to their injuries fell victims to secondary
infections of the lungs and respiratory tracts. The psychological trauma
caused by the accident is just beginning to be acknowledged and goes far
beyond those physically affected by the gas. Victims suffered
depression, anxiety, impotence, loss of appetite, nightmares etc.
For one whole week the government failed to assure the citizens of
Bhopal on whether the air they were breathing, the water they were
drinking , and the food they were consuming were safe or not.
When health department personnel were spraying DDT some residents began
to flee in panic as they imagined it was another noxious substance. On
December 6 the Chief Minister declared that the air was totally safe,
but tests conducted at the initiative of a group of science students
indicated the presence of MIC.
Not very much is yet known about the environmental impacts of the gas
leak from the Bhopal plant. The Indian Council of Agricultural Research
(ICAR) had issued a preliminary report on damage to crops, vegetables,
animals and fish from the accident, but the investigation reported there
were mostly in their early stages with few conclusive findings.
The ICAR Report did indicate that the impact of whatever toxic
substances emerge from the plant were highly lethal on exposed animals.
Many were reported to have died within three minutes of such exposure.
Large numbers of cattle (estimates range as high as 4000), as well as
dogs and cats and birds were killed.
Plant life was also severely damaged by exposure to the gas. Vegetable
crops such as spinach, cauliflower and tomatoes grown by small farmers
on the outskirts of the city were destroyed. There was also widespread
defoliation of trees, especially in low lying areas.
It was criticised that in the name of economic development Third World
countries are thus becoming dumping grounds for hazardous technologies
from the industrially advanced countries. The strong environmental
awareness and environmental movements in the industrially advanced
countries have enforced strict legislative safeguards that have made the
operation of hazardous technology economically unviable. Many pesticides
that are being pushed in Third World countries by multinationals are
already banned in industrially advanced countries. DDT is a typical
example which is being freely overused in India. To expect strict
enforcement of environmental safeguards is to forget the basic economic
fact that it is that relocation is taking place to avoid such
enforcements that relocation is taking place. Statistics state that
every year approximately 22,000 people die in the developing countries
from the use of pesticides no longer manufactured in the West.
Forgotten Obligations
The present generation has an obligation to protect their future
generations. A man has no right to exploit the ecology to the detriment
of to be born. The International Community recognized this
responsibility and drafted several instruments reminding the mankind to
be kind to the natural world. After the loss of millions of human beings
the UN Charter expressed a deep concern for the people yet to be born .
The Stockholm conference in 1972 explained the imperative goal for
mankind as to defend and improve the human environment for present and
future generations. Besides war, peace and Development the International
Law made a beginning in regulating the environmental issues. Man has
both a right to healthy world around and a solemn responsibility to
protect and improve the environs for the next generation.
The United Nations General Assembly adopted World Charter for Nature in
1982 , which explicitly states that the Governments have a duty to pass
on their natural heritage to future generations.
The World Commission on Environment and Development WCED headed by Giro
Harlen Bruntland proposed a set of legal principles for sustainable
development and suggested for a global convention for this purpose.
(World Commission on Environment and Development, Our Common Future,
1987) For this purpose and for arresting further degradation of the
environment and to repair damage already done, the Rio Earth Summit was
convened by the UNGA. Maintenance of ecological balance, prevention and
control of environmental pollution, preservation of our natural
resources, disaster mitigation and sustainable development are the basic
factors of the "Earth Charter", which is also called the "Rio
Declaration" .
Regulation of MNCs
Union Carbide's operations in India go back to the beginning of this
century when it began marketing its products there. In 1924, an assembly
plant for batteries was opened in Calcutta. By 1983 Carbide had 14
plants in India manufacturing chemicals pesticides, batteries and other
products. Union Carbide's operations in India were conducted through a
subsidiary , Union Carbide India, Ltd. (UCIL). The parent US Company (UCC)
held 50.9 % of UCIL stock. The balance of 49.1% was owned by various
Indian investors. Normally foreign investors are limited to 40%
ownership of equity in Indian companies, but the Indian government
waived this requirement in the case of Union Carbide because of the
sophistication of its technology and the company's potential for export.
The multinationals operating in
frivolous areas should be given second priority as compared to the much
needed technology for key sectors of Indian industry. What is vital is
that the multinational should not be allowed to function except under a
strict regime of environmental controls and health and safety
regulations.
The Bhopal plant was licensed to
manufacture 5250 tons of MIC based pesticides per year. However, peak
production was only 2704 tons in 1981, falling to 1657 tons in 1983.
Thus the quantity of pesticides manufactured in 1983 was only 31.37% of
its licensed capacity. Was the Bhopal plant used for experiments in
processes for which the UCIL was not authorised? Or was the capacity of
the plant being under-utilised to maintain a monopolistic hold over
prices?
In the first ten months of 1984,
losses amounted to Rs. 5,03,39,000. Union Carbide India Limited (UCIL),
was thus deducted by Union Carbide Corporation (UCC) to close the plant
and prepare it for sale. When no buyer was available in India, plans
were made to dismantle the factory and ship it to another country.
Negotiations toward this shutdown were completed by the end of November
1984. Financial losses and plans to dismantle the plant exacerbated
Carbide's already negligent management practices leading to executive
decisions that directly caused the contamination of the MIC storage tank
that leaked its contents over Bhopal. While saving money for both Union
Carbide Corporation (UCC) and UCIL, negligent maintenance and
substantial reductions of trained personnel culminated in the horrors of
December 3, 1984.
Union
Carbide holds controls:
Union Carbide India Limited UCIL was the entity running the Bhopal
plant. Union Carbide Corporation is a dominant shareholder holding 50.9%
shares in UCIL. Its share was reduced from earlier holding of 60%
shares. As a multinational with full control over the UCIL, the UCC
navigated the subsidiary in hazardous directions resulting in danger to
lives of hundreds of thousands of Bhopal people. India contended that
UCC was the parent and UCIL-the subsidiary. The Union Carbide's control
in critical areas of safety and technology was only on aspect of Union
Carbide's broader exercise of control over the strategic management
direction of UCIL's agricultural products division, which included the
Bhopal plant. This strategic direction was in accordance with Union
Carbide's fundamental management strategy of coordinating its subsidiary
product lines to accomplish the multinational's worldwide plans. India
was right in trying to create unprecedented standard by lifting the
corporate veil. If succeeded, no multinational corporation operating
hazardous industry in India would be able to deploy its subsidiary as a
shield. If the Indian court delivered a final judgement enforceable in
US Court upholding India's contention, its impact at least initially on
US based multinational specialising in the export of hazard to the third
world societies would have been massive. Perhaps, in fundamentals, at
least the internal economy of Multinational Corporation community would
have to undergo a profound peristroika. It stood to reason that if India
enacted for herself a parens patriae role for the Bhopal victims, the
Union Carbide has to ensure that it assumed a similar role for the
global community of MNCs. The February settlement marked the triumph of
the fiduciary role of the UCC for the world multinational community over
the parental role of the Indian State for the Bhopal victims, observed
Mr. N. R. Madhava Menon .
Parens Patriae without Effective Jurisdiction
No assertion of the parens patriae role makes any sense in the absence
of any effective jurisdiction over a multinational enterprise in a mass
disaster toxic tort. India's suing the UCC in America courts was an
essential precondition for the acquisition of this jurisdiction. Justice
to the victims of Bhopal, whatever it may entail, this required the
assurance of the UCC being amenable to the discipline of the law, either
in America or India.
MNC: Liability for Environmental Damage
The MNCs are not doing any favour in investing in Developing countries.
Instead, they are proved to be environmental hazards for the people
working in and living around. In view of the size, huge capital, and the
distance from which it operates, an MNC is not amenable to be controlled
by a country which awaits investment for generating some sort of
employment for its people. Industrial accidents are ever increasing in
developing countries due to mishandling and negligent operations of MNCs
playing with lives of human beings. Instead of riches and resources MNCs
brought miseries and tragedies to the people and the governments in
third world countries. They have less or no regard for civil and
political rights of individuals by engaging in activity harmful to the
health and welfare of the individuals. Bhopal Gas Tragedy is an example.
Krishna Iyer has rightly named it as Bhoposhima. "What with MNCs with
unlimited exploitative appetites, infra-national industrialists with
initiative, tactics and money power at various levels wooing political
power and while collar, we have the unconscionable ecocides who seduce
politicians, among the vision of governments, lubricate the wheels of
bureaucracy and progandise pollution as a necessary evil for the
salvation of a Nation" These are the words in which Krishna Iyer
explained the apprehensions of the third world countries.
'Hazardous Multinational': New Term in
Globalization
Bhopal incident created a new expression called 'hazardous
multinational' which has to be separated from other ordinary MNCs. For
the application of the principle of Absolute Liability and multinational
enterprise liability, certain characteristics are to be there for
classifying an enterprise as 'Hazardous Multinational'. They are rightly
explained by Upendra Baxi and Amitha Dhanda:
a. the global structure, organisation, technology, finances and
resources of multinationals enables them to take catastrophic decisions-
that is decisions and actions which lead to mass disasters;
b. the power of multinationals, especially over their 'key management
personnel' is neither 'restricted by national boundaries' nor
effectively controlled by international law';
c. this is because of the complex corporate structure of multinationals
with 'networks of subsidiaries and decisions which make it 'exceedingly
difficult or even impossible to pinpoint responsibility for the damage
caused by the enterprise'
d. the 'monolithic multinational' operates through
i) a neatly designed network of interlocking
directors'
ii) a 'common operating system'
iii) global distribution and marketing systems'
iv) design development and technology worldwide
v) financial and other controls
vi) highly sophisticated and technologically
capable machines and working staff;
vii) victims of such daily actions are unable to
identify which unit of the enterprise caused the harm.
Even a manifest fault by a local subsidiary would be put at the doorstep
of a multinational. This principle is based on the premise that power
and knowledge create a legal duty. And this duty, which has an 'absolute
and non-delegable character emanates from the 'unity of power and
knowledge. This duty is two folds. It is the duty of the multinational
to itself 'to keep informed and know'. Such a duty cannot be, by
definition delegable. Second, it is a duty of the same nature to employ
'normal care and prudence' to know about the possibility of emergence of
likely 'hazards and dangers". This duty too is non-delegable. The
consequential duties arise from these two fundamental duties- (i) 'a
duty to provide that all ultra-hazardous and dangerous activities be
conducted with the required standards of safety and, ii) to provide all
necessary safeguards, information and warnings concerning the activity
involved.'
Mehta Principle and Toxic Torts
With Bhopal Gas Tragedy, the age of mass torts began. The real
environmental hazard to multiple masses of third world countries was
realised. The sleepy Indian Government and similar developing countries
shocked to know the direct and serious impact of MNCs in era of
Globalization. The craving for foreign investments and transfer of
technology from west with politically motivated vested interest has
resulted in savage death to thousands of unknown masses. The Indian
Jurisprudential principle of Absolute Liability was naturally not liked
by the MNCs.
The UCC wanted to assail the Mehta principle as unknown to the world
jurisprudence. It is not impossible to justify the Indian assertion. It
is either strict liability or absolute liability or compound of product
of liability, negligence, public and private nuisance in general regime
of tort liability or of some specific regimes or of specific regimes
still emergent of toxic torts . UCC's claim that it was a domestic
American Corporation not doing any business abroad but merely holding
capital stock for book keeping purposes was fictional. The claim that
its foreign subsidiaries were independent and that the UCC was not a
multinational entity are equally controversial.
Absolute Liability Ascertained
Again the Supreme Court came to the rescue of this newly evolved and
much needed principle of tortious liability in mass torts leading to
environmental death trap. Justice Seth did not agree with several
contentions raised by UCC and answered them emphatically. He stated: "
It is futile for the UCC to deny existence of any relationship with UCIL.
It held majority of equity share capital at all material times,
controlled more than half of the total voting power of the Indian
company, controlled the composition of the Board of Directors and its
management. Even if it chose to keep at arm length from Indian Company
it could not absolve it from subsidiaries liability. The material on
record established the fact that UCC had full authority to act for UCIL,
which was totally dependent on technical know how and running of the
Bhopal plant". It is beyond doubt that the UCC had the real control over
the hazardous Bhopal plant operations.
International Code for Trans National Companies
Bhopal gas tragedy and consequent litigation has also revealed the need
for evolving over all controls over the activities of MNCs especially
when they are engaged in hazardous operations. Such a need was felt all
over the world and the Secretary-General has rightly responded to it by
evolving some methods in his report. The first step he suggested was
risk assessment and involvement of factory employees and the community
in the development of methods to identify the hazards and second step
was about evolving strategies to plan and reduce the consequences of
accidents and to settle the claims of liability . But the question as to
the extent of liability of the parent company for the environmental harm
caused by its affiliate was left open for further discussion. Had Bhopal
tragedy was covered by industrial insurance, the victims would have
received the necessary relief without much delay. It took four years to
reach settlement and the distribution of relief is still going on in
Bhopal. Speedy trial and early disposition of claims is as important as
the fundamental right to life. All the theories of liability- the effect
theory and enterprise theory pinpoint the liability on the parent
American company UCC which controlled the Indian Company UCIL in its
establishment and functioning besides playing a significant role in
decision making. UCC not only owes a duty of care towards Indians but
people in general. It is the basis of human rights jurisprudence and
MNCs are subjected to the international human rights obligation.
Similarly the Government of Madhya Pradesh and Government of India also
are liable when the MNCs permitted by them are violating the
international human and environment rights.
International Codes:
Since then various codes of conduct were developed. United Nations
General Assembly, the International Labour Organisation ILO, The Food
and Agricultural Organisation FAO and the Organisation for Economic
Cooperation and Development OECD have incorporated the environmental
aspects and the relations between the MNC and the host country.
The UN Code of Conduct: The UN Draft
Code for Transnational Corporations (TNCs) contain several specific
obligations addressed directly to the MNCs. They include:
1. The obligation to respect the national sovereignty of the countries
in which they operate and the right of each state to exercise its full
sovereignty over its natural resources within its territory.
2. The obligation to be subject to the laws of the host country and the
explicit duty to carry on their activities in conformity with the
developmental policies, objectives and priorities of the respective
governments.
3. In the light of the new interpretation given to development including
the safeguarding of the environment, it should implicitly mean an
obligation not to unreasonably alter the ecological balance of the host
country through their activities .
Whenever an enterprise starts a hazardous activity in the territory of a
state, there is an inherent duty in the nature of the agreement itself,
an understanding that it will not cause any serious adverse effects on
the health of the people or environment of the country. If an accident
like Bhopal tragedy results from the activity of the MNC it might amount
to delinquent conduct or a wrongful breach of duty.
The code also imposes an obligation on the MNCs to respect the human
rights and fundamental freedoms in the host countries. Right to clean
environment is a significant aspect of new human rights jurisprudence.
It is a duty of MNC to protect and preserve that environment. However
strong the code may be, its binding nature is a questionable aspect. The
states have to enforce the code, which is addressed to the MNCs.
Developed nations may not agree to enforce the code.
OECD Guidelines:
Organisation for Economic Cooperation and Development issued a
Declaration on International Investment and MNEs in the Annex of which
guidelines are embodied. The MNEs are accordingly under an obligation to
give due consideration to the host countries aims and priorities with
regard to economic and social progress, including industrial and
regional development and the protection of environment. These guidelines
are only advisory and not mandatory. They are not legally enforceable.
But it reflects the agreement of international community to the aspect
of duty of MNCs to abide by the laws, controls and regulations of the
state in which the MNC operates like any other domestic corporation.
MNCs and their activities brought very complex legal problems to the
fore. The principles of tortious liability, Human rights jurisprudence,
Environmental law and International relations are intertwined and with
rights of the nations and persons as victims. Environmental Law and
International Corporate law is yet to develop into a full-fledged law.
Till then it is difficult for developing nations to control the
hazardous activities of MNCs. The MNCs are not primary subjects of
International Law. They are neither states nor public international
organizations. It is the duty and obligation of the states to exercise
their sovereignty and impose liabilities over the multinational
enterprises without minding their international character and
affiliations. Life and environment are the primary concerns of any state
or organisation. It is everybody's responsibility to protect the natural
rights and the nature, so that the major tragedies like Bhoposhima are
not recurred.
MNCs and Third World Countries:
A firm with several centers of operation in different countries is a
multinational enterprise. Black's Dictionary explained a MNC as: "In a
strict sense this term is descriptive of a firm which has centres in
many countries in contrast to an 'international' firm, which does
business in many countries but is based in only one country, though the
terms are often used interchangeably." Chambers defined it as "a large
business company which has production or distribution operations in
several countries via subsidiaries, holding companies etc".
Third world countries became play
fields for MNCs to make more profit because of cheap human labour and
less stringent environmental regulations besides ready availability of
raw materials. MNCs preferred third world countries rather than the
industrialized first world nations with capital intensive technologies,
expensive human resources and more expensive environmental restrictions.
It is clear that MNCs had no special interest in developing the
advancing countries. They have no concern for the environs of a
developing nation and do not hesitate to exploit cheap human resources
to convert their billions into trillions.
Domestic Law: Amendment to Factories Act
In response to the Bhopal disaster and its consequences, and influenced
by the creation of Absolute Liability principle in Oleum Gas Leak case,
questions of safety and liability were addressed. The Factories Act 1948
was amended in 1987 and a whole new chapter IVA was added. It deals with
hazardous processes.
Site Appraisal: There are provisions
for a Site Appraisal Committee to certify where a factory may be
located.
Compulsory Disclosure: There are
also provisions for compulsory disclosure of information about the
dangers, including health hazards, that could arise from exposure to the
materials in the factory or handling the materials during manufacture,
transportation, storage or other processes. The compulsory disclosure of
information is not only to the inspector under the Act, but also to the
local authority and to the 'general public in the vicinity' of the
factory, which is an acknowledgement of the nearness of people at large
to the risk of disaster.
Disaster Management Plan: A Disaster
Management Plan is to be drawn up even before a factory may commence
activity. For the first time, workers are statutorily accorded the right
to be principal participants in safety management.
Liability of the Occupier: Under the amended Act, the person held
accountable is the 'occupier'. Before 1987 amendment, it was common to
appoint a relatively lowly employee as the occupier who would take the
rap if infractions were detected in the factory. After 1987, in the case
of a company, the occupier has to be a director of the company- a
statutory prescription that has been quite categorically endorsed by the
Supreme Court in 1996.
Relief to Manufacturer and Designer:
There is a very dangerous provision that was inserted in the Act
as Section 7B(5). This section spells virtual absolution for the
manufacturer, designer, importer or supplier of plant and machinery.
Where the user of such plant or machinery gives a written undertaking
'to take the steps specified in such undertaking to ensure, so far as it
reasonably practicable, that the article will be safe without risks to
the health of the workers when property used, it shall have the effect
of relieving" the designer, manufacturer et al from what is otherwise
prescribed as a duty to care for the safety and health of the workers.
The Dangerous Provision: That is, a
transfer of technology agreement could now relieve the Union Carbides,
the Du ponts and other chemical giangs of anwerability for the effects
of the technology they transfer into India. In the unequal world of
transferred technologies, this provision only serves to place the
company controlling the technology beyond the reach of the law. This
definitely makes the MNC a supranational power. If this provision is not
repealed, another such disastermay find a transnational offender
disappearing through this provision to impunity.
Is there any conclusion to this endless trauma?
Shocking Aftermath:
Around twenty years after the world's worst disaster the story has not
yet ended, Thousands who survived are today suffering multiple health
complications and those living closest to the plant continue to be
poisoned. Thousands drink water poisoned by the chemicals that remain in
the abandoned Union Carbide plant. Neither the Government nor the Dow
Chemicals, which bought Union Carbide is willing to take responsibility
for cleaning up. The victims are still running from court to court
seeking justice, while the rest of the country does not know anything
about their plight. It is rightly described as the tragic story of
Bhopal how corporate indifference, government apathy and uninformed
people's disinterest made the life and death of victims miserable for
some more decades. It is unending continuation of perpetuation of
tragedy.
It is reported that the company dug the bottom soil from three large
solar evaporation ponds in Atal Ayub Nagar adjoining UCIL's factory in
Bhopal, spread over more than 20 acres, which were used to dump waste by
UCIL. It was dug to bury the sludge under three meters of farm soil.
People bathe, swim and even drink this water. Cattle die after drinking
water from these ponds. The adjoining tube wells give water unfit for
drinking. The yield from crops from nearby fields was drastically
reduced. At least one person a day still dies from gas exposure related
diseases and 1.5 lakh are in urgent need of medical attention.
Breathlessness, loss of appetite, pain, menstrual irregularities,
recurrent fever persistent cough, neurological disorders, fatigue
weakness, anxiety and depression are among the most common symptoms.
Research findings on chromosomal aberrations suggest that the future
generations of the survivors will possibly carry the leftovers of the
industrial toxins.
The land around the factory is now occupied and every inch of it was
built upon. The abandoned factory us being used as a public toilet by
adjacent slums. Two large cylindrical tanks, which contained MIC
including the one responsible for the gas leak on that fateful night are
still lying there in the factory emanating the poisonous fumes. Sacks of
decaying chemicals, blackened chemical bags, pools of stagnant water,
rusted metal boxes labeled Sevin and Nitrate residues are still pose a
danger to the vicinity there. As the groundwater is totally contaminated
the people living around were promised to be supplied with the
alternative piped water. The amount of Rs 3 crore sanctioned for this
purpose was spent elsewhere .
Who is legally responsible for this toxic wastes left behind by UCIL? In
the absence of industrial activity the lease of the land to factory was
cancelled by the Government of Madhya Pradesh. The land measuring 87.62
acres has been transferred to the Gas Relief and Rehabilitation
department of the Madhya Pradesh Government. But as polluter, the UCIL
must be fully responsible for wastes. It agreed to surrender the land in
usable and habitable condition, as per lease terms. The Madhya Pradesh
Pollution Control Board had directed UCIL to carry out environment
investigation of dumpsite and remediation thereafter. Yet site was
surrendered without complying with those directions in the same
conditions not fit for habitation. All those provisions in Environment
(Protection) Act 1986 and the Water (Prevention and control of
Pollution) Act 1974, which contain heavy penalties are yet to be used
against them. It is continuation of crime of pollution, the MPPCB does
not use its power to prosecute the culprit company.
Cost of clean up was estimated to be Rs 2.5 Crores sometime back. Now
the estimates have gone up to even Rs. 100 crores while Greenpeace
activists put it at Rs 500 crores. Who will pay? It remains a moot
question even today. Bhopal is the symbol of a disastrous 'side' effect
of so called Globalization and stands out as a living, say dying,
example of inadequacy of domestic law to regulate, prevent or penalize
the pollute TNCs and their agents.
As the environment problems are going to be there for all generations to
come, it is the duty of every person and every nation to evolve a
equitable principle of making Trans National Companies liable for its
transfer of hazardous technology to developing countries if that
resulted in damage to human life or environment, without leaving any
scope for escape after passing the buck on to the subsidiary or agent in
different mask.
International law based on conventions and protocols read with UN
documents and reports of the UN Commissions, a new law to tackle the TNC
hazards and imposing absolute liability should emerge. The environment
protection is a universal and inter-generational equitable obligation of
entire humanity irrespective of being developed, developing or
underdeveloped nations in the international comity of nations. If not,
the environment and human life will never be safe. Environmental safety
cannot be achieved by creating new fundamental rights in favour of
citizens, when they are not effectively enforced. Disaster may not be
frequently repeated.
But after experiencing the trauma of disaster, disastrous litigation and
corrupt consequences without imposing any criminal liability on the
culprits, nothing tangible is left as a system with which we could
prevent such disasters. As mentioned even now the abandoned Union
Carbide factory is spreading the poisonous gas, and the State did not
prevent the spread of residential colonies around the deserted place of
disaster, containing the contaminating chemicals. What system do the
third world countries have to tackle the present and continuous disaster
and to prevent some more?
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