The Bhopal gas tragedy, was a gas leak incident in India, considered the world's worst industrial disaster. It occurred on the night of 2–3 December 1984 at the Union Carbide India Limited (UCIL) pesticide plant in Bhopal, Madhya Pradesh. Over 500,000 people were exposed to methyl isocyanate gas and other chemicals. The toxic substance made its way in and around the shantytowns located near the plant.. Estimates vary on the death toll. The official immediate death toll was 2,259.
Bhopal Disaster Survivors' Torch Rally
Though there are gaps between the philosophy and the practice of human rights, nevertheless they are a powerful philosophical discourse and provide widespread moral norms and standards and have a powerful guiding purpose. The United Nations Universal Declaration of Human Rights in 1948 born out of the human rights violations of the Second World War when it was clear that there needed to be codified protection of human rights at international minimum standards. The Charter of the United Nations reaffirmed “faith in fundamental human rights, in the dignity and worth of the human person, [and] in equal rights of men and women and of nations large and small.” The Universal Declaration seeks to protect life, dignity and security of the person and also economic, social and cultural rights.
The Universal Declaration of Human Rights in its preamble decrees that “Every individual and every order of society” should promote and respect human rights.Every individual and every organ of society excludes no one, no market, no cyberspace. The Universal Declaration applies to them all.
As Secretary-General of Amnesty International held “Human rights are rooted in law. Respecting and protecting them was never meant to be an optional extra, a matter of choice. It is expected and required. It should be part of the mainstream of any company's strategy, not only seen as part of its corporate social responsibility strategy
The world's largest 200 transnational organizations are incorporated in ten states headed by the United States of America, Japan, Germany, France and the United Kingdom and have enormous political and economic impact on the global world. Regulation of their power is more difficult to encompass beyond their sovereign national borders. As Forsythe holds if governments succeeded in regulating “its” corporations in global competition the state might receive “fewer economic benefits and competitors more.” The debate is “Whether there should be more public regulation of TNCs in the name of human rights?
International instruments have been set up in an endeavour to regulate the conduct of multinational enterprises in the jurisdiction of their host countries .The Organization for Economic Cooperation and Development (OECD) in 1961 germinated from the Organization for European Economic Cooperation (OEEC) and is known as “The rich state club.” Thirty countries have now signed the convention which propagates a commitment to the market economy and democratic government. Its seeks to promote “voluntary standards of responsible business conduct” in the framework of the Guidelines for Multinational Enterprises which were adopted in its’ 1976 Declaration on International Investments Multinational Enterprises. There are now also nine adhering non-member states which include Argentina, Brazil, Chile, Estonia, Israel, Latvia, Lithuania, Romania and Slovenia.
The United Nations Global Compact Summit held in Shanghai China in December 2005 resulted in the Shanghai Declaration which has over 2,300 participating companies. The Global Compact recognizes that there are overriding principles of international human rights standards to which companies must adhere bearing in mind the “expanding global commerce” and the “deepening interdependency between states, cultures and people.” It holds that businesses should respect and support the protection of internationally acclaimed human rights and that they must ensure not to be complicit in any abuses of human rights
There are strong arguments against obligatory human rights responsibilities for multinational enterprises. He argues that corporations have a legal responsibility to make profits for shareholders and not to interfere with moral precepts in other societies and that they have no “positive duty to serve human rights” or legal imperative. .There must be a quandary as to “which human rights are MNE’s to observe?” Clearly they can ameliorate the working conditions of their employees but not their “civil and political” human rights.
Muchlinski, (2001) holds there are compelling reasons for multinational enterprises to observe response would human rights standards of conduct as advocated by international instruments the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy 1977 and the OECD guidelines For Multinational Enterprises which provide moral expectations and the benchmark for human rights standards
There are growing expectations in the public, private, political and economic arenas for multinational companies to respect and adhere to human rights norms and issues in a responsible way hence there are implicit advantages for multinational corporations to adopt human rights policies. Investors are increasingly socially responsive to human rights issues and sensitive to the increasing availability of media information. A good human rights reputation is conducive to positive investor enterprise. Consumers are nurturing and developing growing responsible purchasing choices in the marketplace and have greater accessibility of information to guide their knowledge input. Ready examples are legion such as the environmental issue of access to water in India where villagers complained of depleted clean water supplies as a result of Coca-Cola’s production plants, the security firms Caci, Titan being involved with in illtreatment and torture in Iraq's Abu Ghraib prison, forced child labour lawsuits brought against Nestles and others in the production of cocoa in West Africa and Virgin Blue airline of Australia discriminating by means of age bias against their flight attendants. Consumers purchase according to the environmental and social conduct of the multinational companies, and therefore human rights company policies and standards are reflected in consumers response. Companies who act outside the premises of human rights standard are also susceptible to boycotts and protests.Non-profit human rights groups, along with the media and particularly consumer organizations and movements, are targeting the corporations
Current employees and future employees are more attracted to working for a company with a positive record in the environmental and social issues. Employees observing internal human rights misconduct may respond working elsewhere.
As “The Economist” (1998) states, “Today multinationals are under pressure as never before to justify their dealings with abusive regimes and their treatment of employees in developing countries. Firms used to brush off criticism, saying that they had no control of the Third World's suppliers, and that politics was none of their business anyway. This is no longer good enough.”(p13)
Non government organizations (NGOs) such as Amnesty International, Human Rights Watch, and the International Federation for Human Rights are having increasing focus on and scrutiny of the conduct of multinational companies. As Forsythe (2006) states, “NGOs are seen as the real motor to the process of growing attention to international human rights.” He points out that “Without the sum total of human rights NGOs, it is said, that contemporary international relations would be far less supportive of human rights.” (p18). As Muchlinski(2001) points out the global vigilance, networking of information and mass media utilization is a major impediment to unscrupulous and indifferent policies of MNE’s(p 32) NGOs are able to rally negative public impulses against multinational corporations who failed to respect human rights standards and instigate negative media coverage and widespread protests and boycotts against offending companies. The Business and Human Rights Resource Centre founded in 2002 is an important independent resource internet site which monitors both human rights and business issues. Its purpose “To encourage companies to respect human rights, avoid harm to people and maximize their positive contribution.” It was set up with the purpose of encouraging and promoting companies to respect human rights. It provides one stop easy access to information for non- government organizations, companies and others on the human rights impact of companies.
There is growing concern for multinational enterprises to be scrutinize and accountable for their human rights policies and responsibilities and their public opinion as fuelled by the NGOs is a compelling impulse and there are strong compelling reasons for subjecting MNE’s to legal and enforceable obligations. The impact of globalism has social and human rights consequences for the vulnerable and marginalized and those without economic and political power. Multinational corporations produce many plausible reasons why the impact of these disparities between themselves and those on the periphery of society should not be subject to legally enforceable obligations, however, any voluntary obligations should be treated as suspect. These corporations are liable to reinforce such disparities between postindustrial economies and developing societies which are already lagging and plagued by ignorance, poor working conditions, government corruption and multiple burdens of debt. Affluent nations already have an untenable advantage and the cutting edge, while Third World countries lack resources, skill and infrastructure. Legally enforceable obligations of human rights will shift some of the global disparities in both power and wealth by fostering and strengthening the marginalized voices of the developing world and fostering a worldwide civic society. It is true as Clapham (1993) points out that this will create a change in legal, political, and social relations and signify changes in the foundations of human rights thinking and philosophy, for at present corporations are the protected beneficiaries of human rights and their standards.
On the international level multinational corporations cannot be held accountable for human rights violations as there exists no international mechanism equipped to do this. At present international regulation of M.NCs regarding human rights remains dependent on national enforcement. In other words there is no system of international law to enforce liability for damage to other countries and violation of the human rights. Social responsibility in transnational commerce is signalled by voluntary commitment.
The difference between corporate responsibility and corporate accountability the former being a voluntary response to ethical and moral considerations which as he states is the favourable approach of the International Chamber of Commerce and the United Nations Global Compact. Corporate accountability has due consequences for lack of compliance Needless to say Multinational Corporations inevitably favour voluntary compliance to their corporate social responsibility (CSR). Clapham points out that NGOs such as Christian Aid are regarding the volunteer position as suspect and advocate legal compulsion and consequences for non adherence to international standards of human rights. There has been a growing concern for the interaction between multinational enterprises(MNE’s) and human rights , especially with the significant growth in the number of cases of major violations resulting in disputes between the MNE’s and the host governments. One such case was that of the Bhopal disaster, one of the world's worst industrial disasters in 1984 when Union Carbide, Dow Chemical hid behind frontiers to avoid responsibility.
A Corporation exist with its primary concern to maximize profits and minimize costs for its shareholders. It is in this precinct that it establishes a propensity for harm to the environment, to its workers and to the human rights of people. Because companies hold that their duties are concerned with short-term shareholder profits, corporate decision-makers may hold adherents to human rights programs “a breach of duty to maximize profit. The “only social responsibility of multinational enterprises is to make profits for their shareholders.
In the 2003 film “The Corporation”, a Canadian documentary, Noam Chomsky states that a corporation is a special kind of person, “with no moral barometer, solely concerned with generation the maximum profit possible for its owners.” Milton Friedman in the film explains corporations pursuant of profits created the concept of “externalities” meaning the effects of transactions between two parties on the third uninvolved party. Friedman states these include the use of national military to secure oil rights for energy corporations. In the film Charles Keraghan, director of the National Labour Committee, documents his travels to a sweatshop in El Salvador to demonstrate the conditions of workers of America brand name clothing.
These early initiatives instigated whether by the International Labour Conference (ILC) the OECD, the International Chamber of Commerce or other institutions are defective in their mechanisms of monitoring and have proved uniformly weak in the 1970s and 1980s. However, more recent initiatives holds more promise for change, especially negotiated agreements which have adequate monitoring processes and the backing of governments for the implementation and the reporting publicly of corporate human rights activities.(p 245). In 1998 one such initiative agreement occurred in the footwear and apparel industries between Nike, Reebok and others creating the Apparel Industry Partnership (p 239). The American Apparel Manufacturers Association and the Council of Economic Priorities, created by Avon and Toys R U, are further examples of human rights enabling (p239, 240) .
Environmental damage and desecration by the multinational corporations has been allowed to occur with virtual impunity as a result of the inbalance of power between the multinational and countries in the developing world where national systems are ill equipped to deal with cross border environment issues. As Oxfam (2004) states “There is a massive concentration of corporate power in the global economy.” It is vital to make companies accountable for their activities and to enforce ethical behaviour towards the economic social and environmental contexts within which corporations operate. Multinational corporations entice Third World developing countries with their depreciated environment to weaken regulations and conditions which regulate environmental and regulatory standards. Developing countries will offer favourable treatment to multinational corporations including special tax and tariff treatment, strong protection and a minimum of red tape in a bid to induce corporations to set up operations in their jurisdiction. Hence multinationals feel free to engage in practices which they would not do in their own countries.
The Bhopal Gas Tragedy left Cattle and Plant species Dead
The Alien Tort Act 1789 permits redress against the violation of national law by private individuals regardless of the Nationality of the parties. In the nineties an important jurisdictional ruling was made in a court in a case against Unocal Oil Firm California for involvement in forced labour and other violations of human rights in Burma. Human rights organizations attempted to utilize The Alien Tort Act to against transnational corporations for violations of human rights , however, in 2004 the United States Supreme Court narrowed the application of the act and subsequently in the Federal District court refused jurisdiction against American corporations for human rights violations.Because the voluntary regulatory systems for international standards is seen as largely ineffective and there is no global court when the damage occurs across boundaries, injured parties will often resort to national courts as a device to redress grievances against harmful activities of international companies . Ideally the court of jurisdiction should be the home country of the parent company which is the location of the company assets and where the decision-making has occurred which has desecrated the environment of another state. When the environmental damage occurs in another country, the home state will have little incentive to redress the damage, while the host country may well the reluctant to deter foreign investment by appearing to regulate investing companies. Courts in developing or Third World countries may be ineffective or unwilling to litigate against powerful multinational corporations, the damages will be lower and courts may be ill-equipped to deal with complex matters of environmental degradation. Though the plaintiff may seek to choose the court's jurisdiction the defendant can resist this by invoking the legal doctrine forum non conveniens.
In the case of the Bhopal disaster the world's worst modern industry accident, forum non conveniens was invoked by the plaintiffs Union Carbide Corporation to avoid justice in the United States of America. The federal courts of the United States decided that the case should be heard in jurisdiction of the Indian courts thus denying the defendants’ access to justice and exposing them to the double standards of industrial safety between multinational corporations between First World and Third World countries.
The Parliament of Australian Department of Parliamentary Services argues the United States approach to the doctrine forum non conveniens results in US multinational corporations, such as Union Carbide being able to escape accountability in United States “when things go wrong abroad.”(p 2) Clearly the Australian approach, which is to allow international cases to be decided in the country “of greatest connection,” would render the United States’ multinational corporations subject a greater degree of regularity and the assets of the corporations obtainable to enforceable judgment. By refusing to exercise jurisdiction in cases such as in re Union Carbide a court effectively allows a US manufacture to avoid US tort liability and encourages other manufacturers to locate plants abroad. By allowing transnational business to choose legal systems imposing a lower regulatory burden than the United States, US courts have effectively lowered regulatory standards.
Had the catastrophic Bhopal gas leak occurred in the jurisdiction of the United States, there would have been a tort action of the immense proportions, significant damages, high accountability and even corporate reorganization.
A possible impediment to legal action in a host country is the reluctant to obtain compensation on the grounds that it might deter foreign investment opportunities. In the case of the Bhopal industrial disaster the Indian Government in 1985 enacted the Bhopal Gas Leak Disaster (Processing of Claims) Act where it became the sole litigant in any court proceedings against Union Carbide.
Amnesty International USA (2007) states that in Bhopal thousands of people “were denied their right to life, and tens of thousand of people have had their right to health undermined. Those struggling for justice and the right to a remedy in Bhopal have been frustrated in efforts.” Amnesty also stresses that those who continue to live there have been denied the right to safe environment and continue to be exposed to contaminated water.
On the third of December 1984 at midnight , in Bhopal, the capital of the Indian state of Madhya Pradesh, , 43 tons of methyl isocyanate (MIC) leaked from a holding storage tank at a chemical pesticide plant belonging to an American multi-national company Union Carbide Corporation.. MIC is a highly toxic substance and is the active agent for making the pesticide Sevin. Because of its instability it must be kept at low temperatures. It had been kept in dangerously bulk storage and were not properly monitored or controlled. The safety system was defectively designed. Neither the workers nor the general population were aware of the dangers of the deadly chemicals and there was virtually no protection for the employees working with these dangerous chemicals.
Bhopal has a population of the 900,000 people. The densely packed shanty town and slum settlements surround the factory on three sides. Union Carbide is located two miles from the centre of the old city and it is one of the most densely populated areas of the city with the railway station and bus station a mere mile from the factory. The Town and Country Planning Department (1975) had stressed that the designated plant site was not for hazardous industries, however, Union Carbide was a powerful company with economic leverage and political influence so that government authorities overruled local city objections. India, as other Third World countries, is dependent on foreign capital for its development and there was little real regulation of Union Carbide.There was also an unlimited supply of cheap labour. There were low standards of safety and working conditions because Union Carbide was determined to keep costs of production low and profits maximized.
The gas leak was caused by faulty valves and the water leakage into the methyl isocyanate holding tank and reacted by the release of toxic gas. The lethal gas was heavier than air and rolled along with ground Approximately 500,000 people were exposed to the toxic MIC gas cloud. Around 3000 died that night, approximately 4000 people died during the next few days and 15,000 in the following years. (Amnesty International 2004, Greenpeace 2004, Bhopal Medical Appeal,).
While many died in their sleep , thousands more ran through the narrow dark alley ways trying to escape the dense gas cloud which made it difficult to breathe and burned the eyes and lungs. Many fell dead. The survivors suffered extensive lung damage, cardiac damage, blindness, long-term gynaecological problems, pelvic inflammatory diseases, cervical erosion and slow death. Civil authority was virtually nonexistent and few medical facilities were available.
Union Carbide had used the structure of dependency of India, a Third World country, to establish an operation without safeguards and responsibility towards the environment, their workers and the population and engaged in practices which resulted in catastrophic human and environmental damage. Susceptibility of developing countries and lack of international regulation allowed them to hide behind frontiers and deprived the world's most vulnerable, just settlement. In 1989 the Indian government accepted an out of court settlement from Union Carbide of $470 million, little if this money has reached the victims and their families. 20 years later the site of the factory is still contaminated with toxic waste and the water is still contaminated. The Bhopal disaster contains lessons for all those who valued the protection of human life through international safety standards that multi-international corporations should be accountable to stakeholders as well as shareholders and that the primacy of human life supersedes profit.