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FROM 3/12 TO 9/11: PRE-EMPTING ANOTHER BHOPAL?
Article written by Surya Deva

The Bhopal gas leakage and the 9/11 tragedies, at a first glance, seem two disparate incidents, in terms of geography, immediate causes and its scale and scope. However, both have had some important consequences and produced many ripples. How do these two tragic incidents relate? In what respects are they instructive for the future?

It was twenty years ago, when in the cold night of 2-3 December 1984, due to the leakage of methyl isocyanante (MIC) and other gases from the pesticide plant of the Union Carbide Corporation-Union Carbide India Ltd. (UCC-UCIL), caused the death of over 3,000 people. Over 2,00,000 people today continue to bear the burden of chronic respiratory problems. In fact, people outside India still identify Bhopal with the gas tragedy than for many other better things for which it should have been known.

Another equally catastrophic incident welcomed the march of civilization into the 21st century: on the morning of 11 September 2001, a daring and deadly terrorist attack on the World Trade Centre (WTC) in New York killed 2,752 people and also had adverse economic impact. The world was stunned; they did not fathom that this could have happen to US of A. Many people, from the victims relatives to rescue personnel, still continue to suffer from trauma and/or psychiatric sufferings.

Comparing Bhopal with New York?
To many readers, a comparison of these two incidents might look like comparing the incomparable (even the style of recording dates is different at two places!). Indeed, there are stark differences, both between the two cities and the mishaps.

After all, Bhopal is a small city in the heart of India, trying to overcome the stigma of the disaster and striving for development in the era of globalization. It is merely in the centre of India but New York is the centre of global, political and economic power. In terms of infrastructure, the two remain poles apart. Even the victims differ greatly in terms of their nature of employment, level of education, wages, health and safety conditions, and socio-economic status. Moreover, people died in New York in a barbaric terrorist attack, whereas it was result of merely an accident in Bhopal (though the UCC had initially pleaded in the court that the accident was caused by a terrorist organization). Therefore, it can be suggested that the above two are incomparable variables.

I do not intend, or need, to disagree with the above. I will, however, argue that there are at least three commonalties between the two. First, the causes behind the incidents in both Bhopal and New York (MNCs and terrorism respectively) represent an increasing threat to the realization of human rights. More so, when states itself start acting in connivance with MNCs and/or terrorists to suit their myopic interests. Second, in both the situations, the alleged offender(s) were located outside the national borders and could be described as invisible; it was not easy to bring them before the legal process. Finally, as far as the value of lost lives and the obligation of the states to bring to justice the perpetrators who brought the floods of deaths are concerned, both Bhopal and New York share the same landscape.

It must be noted the differences mentioned above should have no bearing either on the value of life or the remedial response of the governments to deprivation of lives. It is not difficult to find the reason for this: both the factual matrixes involved the right to life and the right to access to legal process in case of the denial of the former. States are duty bound, both under their constitution and the international law, not only not to take the life of its people without due process but also to ensure that no one else can do the same.

Moreover, if the states fail to meet this primary obligation, they are then under a secondary obligation; it is the responsibility of the concerned state to apprehend and prosecute, on behalf of the victims and their family members, the alleged offender(s). This will ensure that injustice is replaced with what the civilized world today recognizes as justice. In certain situations where it may not be possible to find the alleged offender, states will discharge their secondary obligation if they make sincere efforts to perform their responsibility and also take care of the victims and/or their dependents.

Indian vs. US Response: Difference in value of human lives?
How the response of the respective governments to Bhopal and New York differed? Let us first examine the response of the Indian government to Bhopal.

The government made a promising start by acting as parens patrie and enacting the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 in order to secure that claims arising out of, or connected with, the Bhopal gas leak disaster are dealt with speedily, effectively, equitably and to the best advantage of the claimants. Self-empowering itself with this legislation, the government decided, even at the cost of disparaging its own judicial system/judiciary, to fight the real and deep-pocketed culprit (UCC) in its own home, i.e., the US. Though the governments ambitious strategy was scuttled by the decision of the New York district court dismissing the suit on the ground of forum non-conveniens, it resulted in UCC giving an undertaking to submit to the jurisdiction of the Indian courts.

When the matter finally reached before the Indian courts, UCC skilfully played its cards (including delaying the proceedings, filing cross appeals, challenging the power/jurisdiction of Indian courts, and even conveying a veiled threat about the non-enforceability of an Indian judgment against UCC in the US) so as to coerce the government to enter into a settlement.

It seems that these tactics swayed even the Indian Supreme Court, as it is clear from the two terms of the settlement order. First, it provided that all criminal proceedings should abate. Second, the compensation is given by UCC as showing mercy to the Bhopal victims and not as a wrongdoer. This is manifest from the following language of the order, endorsed by none other than the Apex Court: The aforesaid payments [of $470 million] shall be made to the Union of India as claimant and for the benefit of all victims of the Bhopal gas disaster and not as fines, penalties, or punitive damage. (UCC v. UOI, AIR 1990 SC 273, 275; emphasis added). Though the judiciary rectified the first mistake later on (UCC v. UOI, AIR 1992 SC 248), the second issue has remained largely unnoticed to date.

The central government not only did not press for the extradition of Warren Anderson, the then CEO of UCC, but also applied to the court at Bhopal, which is presently hearing the criminal charges, to dilute the charge from culpable homicide not amounting to murder to death by rash or negligent act. Though the court rightly did not accept the request of the government, it leaves no doubt that at least the executive wing of the guardian of human rights considers creation of MNCs-friendly environment more important than safeguarding the rights of its own populace. The government has also shown lack of commitment in ensuring that the compensation, instead of being siphoned off by a cartel of doctors-lawyers-fictitious victims, reaches the rightful victims quickly.

The Indian government, who has exclusive standing to initiate proceedings related to Bhopal disaster, did not even support the actions brought before the US courts under the Alien Tort Claims Act (ATCA), an Act which allows an alien to sue in the US for torts committed in violation of the law of nations. As expected, the US courts dismissed the petitions primarily on procedural grounds, thus by pointing out the lack of standing of the victims and their organizations. When the petitioners sought to draw the attention of the US court to the fact of UCC-Anderson evading the jurisdiction of an Indian court hearing a criminal case, the court has to remind everyone that it is the courts of India (augmented perhaps by the powers of the Indian government), not the [US court] that would have the authority in this case to defend their own dignity by sanctioning the defendants alleged acts of defiance, which occurred solely within their domain. I wish that the current honourable Attorney General, who advised the government against seeking the extradition of Warren Anderson, were hearing this.

In sum, the Indian government (including the judiciary), despite a chance offered by Justice Keenan to stand tall before the world, missed an opportunity to face the challenge of taming an MNC for violation of human rights of its people. When Justice Bhagwati tried to rise to the occasion in Oleum Gas Leak case (1987) 1 SCC 395 by propounding the principles of absolute liability and proportionality of damages, these initiatives were frustrated by none other than his brethren judges. One honourable judge went to the extent of labelling them as essentially obiter. It was only later on in Bichhri case (1996) 3 SCC 212 that the Supreme Court rectified its mistake. But this was too late as far as the Bhopal victims were concerned.

The US government, on the other hand, reacted to the terrorist attack on WTC by launching a global war on terrorism, canvassing the international support for launching an attack on Afghanistan, dismantling the terrorist network, apprehending suspects, ensuring that 11 September is remembered as the day of mourning all over the world, and also by utilising this opportunity to promote the so called hidden agenda. This is not to suggest, however, that the US government was legally justified in doing everything it did (including the detention of the suspects in Guantanamo Bay in blatant disregard to human rights). It is also doubtful whether these efforts, including the pre-emptive ones, have made the world a safer place for human rights by liberating the people: it is one thing to announce through media that the war on terrorism has brought freedom to the people of Afghanistan and Iraq, it is altogether another to ensure that the people, including women, actually enjoy the promised liberation. But when it comes to safeguarding the life and liberty of the US citizens, the government did not hesitate to take even legally questionable steps.

The above stark differences in the response of the Indian and the US government to Bhopal and New York respectively indicate clearly that despite a theoretical presumption to the contrary, there is a difference in the value of lives of people across the world. It seems that whether human rights (or their violations) are to be taken seriously or not depends, among others, on the fact that whose human rights are violated and by whom. If those, whose human rights are violated, are not powerful or they are less powerful than who violates their rights, the chances of getting a redress, even with the help of state, are significantly lesser.

This scenario leaves much to be desired as it runs counter to two basic premises of universal human rights. First, all human beings have these rights by virtue of their being so, and irrespective of any irrelevant (mostly) man-made distinctions. Second, human rights shield the powerless from the powerful, including minority from the majority.

Post-Bhopal Scenario
Both Bhopal and New York have now acquired secondary meanings. Bhopal represents and symbolizes the corporate irresponsibility of MNCs for human rights violations worldwide, and a timid response of a government to such irresponsibility. MNCs believe that they can violate human rights in developing countries and remain unaccountable. From Bhopal to Unocal and beyond, the response of legal processes, both at municipal and international levels, has strengthened this belief. The recent approval of the Norms on Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights by the UN Sub-Commission on Human Rights does offer some hope, though it is too early to predict with certainty the extent of their efficacy even if they are adopted in the near future.

New York, on the other hand, now stands not only for the Statue of Liberty but also for an attack on what the Statue of Liberty symbolizes. The fears are not merely that human rights are directly violated by terrorist activities but also that states might use terrorism to curtail, abridge or suspend human rights. Or states in the process of redressing human rights violations by terrorist activities, might violate the human rights of others who are considered less human. Moreover, it is also probable that states find themselves increasingly vulnerable and incapable in fighting human rights violation as a result of terrorist activities.

Thus, in my view both Bhopal (i.e., MNCs) and New York (i.e., terrorism) pose a serious threat to human rights realization everywhere. And unfortunately, the conventional state-centric framework of enforcement may prove inadequate in both the situations. No deep analysis or exploration is required to reach such a conclusion. On the one hand, in the era of decolonisation, states and MNCs seems to have exchanged their places: from the time of British East India Company acting as an agent of a colonial state, now many states are more than willing to act as agents of MNCs. On the other hand, states have initiated, promoted, protected or supported terrorism in the past as a matter of convenience, and there is no strong reason for believing that they will make a drastic change in their approach in future. This makes it imperative to deconstruct the role of state as guardian of human rights. Further, it is equally important that the use of human rights for other than the human rights and the adoption of an inconsistent approach of double standards are unmasked. Human rights are also about politics but they are not merely politics.

Lessons to be learnt
Safeguarding human rights from the power of state and other emerging potential power centres such as MNCs has been, and continues to be, a long and costly affair. It is, however, critical in the evolving world order that the task of guarding human rights is not left only on the guardian, i.e., the government, including the judiciary. The government, as Bhopal and Enron show, may act in complicity with violators or may even be ready to barter human rights for economic development of the influential few. Therefore, let us remember the thousands of those who paid (and are still paying) the irreversibly heavy price for the misdeeds of UCC/UCIL-UOI by combining our efforts to preempt another Bhopal.



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