Bhopal and the Elusive Quest for Justice

I write this from India, where thirty years ago, in the central Indian city of Bhopal, a cloud of poisonous chemical methyl isocyanate emerged from the fertilizer plant of Union Carbide Corporation, killing more than two thousand people almost immediately, killing many more in the weeks and months that followed, and shortening the lives of many thousands more.

Ultimately how many lives were affected by the Bhopal gas disaster is, in a sense, not the key issue: what matters is that three decades later, the lives of many of the survivors remains miserable, and the health of many of the city’s residents remains at risk because of concerns over the city’s water supply which may have been contaminated because of toxic materials still kept in the now-defunct plant in Bhopal.

As nearly two thousand delegates from business, governments, and civil society gather in Geneva at the Palais des Nations to explore ways to strengthen corporate commitment to respect human rights and remind states of their obligation to protect human rights, it is clear that much work lies ahead to ensure effective and timely remedies for victims of human rights abuses due to corporate acts of commission and omission. It is worth paying attention to the Indian tragedy, although now three decades old, precisely to avoid the mistakes made and cynical strategies deployed, which has kept justice elusive for the victims.

If you look at the website of Union Carbide Corporation (which now does not exist; it has been merged with Dow Chemicals since 2001) on a page describing the company’s history, the company asserts that the disaster was the result of an act of sabotage, possibly by a disgruntled employee. It has never been able to prove that it was an act of sabotage, but the company’s lawyers believed that the argument allowed them to distance the corporation from the act of an individual. Legal scholars disagree with that assertion, but that is besides the point now; the fact is that the series of steps the company took since revealed that its primary aim was to dissociate itself from the tragedy in order to minimize liability and maintain its shareholder value.

While its former chief executive Warren Anderson immediately flew to India, the moment a criminal case was filed against him, he fled, remaining a fugitive from Indian law. Anderson died this September in the United States. I was a student in the United States the night of the accident, and I recall the next morning a spokeswoman for the US chemical industry appearing on network news not to express sympathy for the victims, but chiding the Indian government for allowing illegal settlements to emerge near the company’s plant, failing to realize that people living miles from the plant were also affected by the gas leak and died.

Spin doctors speaking for the company promptly issued statements highlighting India’s poor factory inspection regime, as if that somehow exonerated lax management at the plant. Presumably on grounds of commercial confidentiality, the company’s officials did not divulge the chemical properties of methyl isocyanate to medical professionals in India, making it harder for the physicians to provide the right medication to the gas-affected people. Its lawyers succeeded in arguing that the appropriate forum to fight the legal case was India, and not the United States.

The Indian Government too was culpable. Soon after the disaster, the new Indian Government of Prime Minister Rajiv Gandhi passed rules that prevented the victims to seek relief individually. Rather patronizingly, the government decided to fight the case on their behalf, denying the victims their rights. Later, the government signed a compensation package considered insufficient even by the standards of the late 1980s.

Finally, the government and the corporation got India’s Supreme Court to pass an order which would prevent future challenges to the agreement. In 1994, Union Carbide sold its Indian assets, including the mothballed plant, to McLeod Russel, an Indian company that specialized in growing tea, a transaction whose synergy is difficult to decipher even by the liberal standards of mergers and acquisition mania. Five years later, Dow Chemicals announced that its board had approved a transaction worth $11.6 billion that would make Union Carbide its wholly-owned subsidiary. In 2001, the merger was complete.

Over the years, activists in Bhopal and around the world have attempted to secure justice for the victims by going after Union Carbide first, and then Dow. McLeod Russel has been curiously absent in this campaign. Dow has consistently maintained that it is not responsible for what happened in 1984, because while it bought Union Carbide company between 1999 and 2001, UCC had sold off its Indian operations to another Indian company in 1994. Dow’s case is that it had no role in the disaster of 1984. Activists and victims’ lawyers say that poor storage by UCC of toxic materials in the Bhopal plant has affected the city’s water supply and health, and subsequent studies have shown that the number of deaths was probably far higher than the two to three thousand deaths estimated originally. The extent to which a company is liable for the legacy of its corporate acquisitions remains under-explored, and affects other major cases, including, most prominently, the case involving Chevron and Ecuador.

But it is indeed a travesty of justice that thirty years after the Bhopal tragedy, no corporate entity has been held accountable for the worst industrial disaster of all time; no executive of the US corporation has been prosecuted; victims in india have continued to suffer; and governments appear to be going about as though no fundamental change is necessary in addressing the lack of effective remedies. Whether such remedies should be through private litigation, public interest litigation, arbitration, criminal cases, the use of tort law to seek compensation, or a new binding international treaty that may create an international criminal court to try the most egregious violations of human rights, of course requires thoughtful discussion and negotiation. But movement in international law tends to be glacial, and victims of human rights abuses – be they in Bhopal, in the Niger Delta, in the plantations of Southeast Asia, in the mines of Africa, or factories in Bangladesh or Cambodia – should not have to wait decades.

Sufficient laws exist within the arsenal of governments to prosecute cases quickly, enforce laws fairly and swiftly, and secure remedy domestically to send a powerful signal to companies – that in their pursuit of profits they cannot abuse human rights. Victims should not have to wait another thirty years before a new international legal instrument is negotiated, signed, and ratified to everyone’s satisfaction. The stories that novelist and activist Indra Sinha told in his Booker Prize-nominated novel Animal’s People, and the images that Indian photographers Raghu Rai and Pablo Bartholomew captured so in the early hours of the tragedy should remind all of us of the urgency of the task ahead.