A. IDENTIFICATION
THE ISSUE
Developing countries are particularly vulnerable to industrial crises. However, industrial accidents such as Bhopal are not just an Indian or even a Third World problem but are industrial disasters waiting to happen , whether they are in the form of "mini-Bhopals", smaller industrial accidents that occur with disturbing frequency in chemical plants in both developed and developing countries, and "slow-motion Bhopals", unseen chronic poisoning from industrial pollution that causes irreversible pain, suffering, and death (Weir, pp. xi-xii). These are the key issues we face in a world where toxins are used and developed without fully knowing the harm that can come from their use or abuse.
DESCRIPTION
Developing countries, such as India, are particularly vulnerable as they lack the infrastructure (e.g. communication, training, education etc.) required to maintain technology but are nevertheless, eager to set up and maintain industrial plants. As a result, they compete globally to attract multinational companies for their investment and capital, and in this process, often tend to ignore the safety and health violations that many MNC's engage in. "Developing countries confer upon MNC's a competitive advantage because they offer low-cost labor, access to markets, and lower operating costs. Once there, companies have little incentive to minimize environmental and human risks. Lax environmental and safety regulation, inadequate capital investment in safety equipment, and poor communications between companies and governments compound the problem" (Cassels, p.279).
The Bhopal facility was part of India's Green Revolution aimed to increase the productivity of crops. Considered an essential factor in the effort to achieve self-sufficiency in agricultural production, pesticide production use increased dramatically during the late 1960's and early 1970's. The decision to manufacture the pesticides in India, as opposed to relying on imports was based on India's goal of preserving foreign exchange and its policy of industrialization (Cassels, p.39). In 1969,
Union Carbide (UCC-the parent company) set up a small plant (Union Carbide India Ltd.- UCIL) in Bhopal, the capital city of Madhya Pradesh, to formulate pesticides. Bhopal was chosen as the site for the Carbide plant because of it's central location in India, a railway system that spanned the country, a large lake which provided a reliable source of water, and sufficient electricity and labor to sustain a large scale industrial plant. The MIC facility was located in the existing Carbide plant to the north of the city, adjacent to an existing residential neighbourhood and barely two kilometres from the railway station. Union Carbide claims that the "squatter settlements" around the plant arrived only after it did. However, "all three of the worst-affected communities in the disaster apparently existed before the Union Carbide plant opened" (Weir, p.36).
Until 1979, the Indian subsidiary of Carbide used to import MIC or methyl isocyanate from the parent company. After 1979, it started to manufacture its own MIC. MIC is one of many "intermediates" used in pesticide production and is a dangerous chemical. It is a little lighter than water but twice as heavy as air, meaning that when it escapes into the atmosphere it remains close to the ground. It has the ability to react with many substances: water acids, metals, and the small deposits of corrosive materials that accumulate in pipes, tanks, and valves.
The MIC in Bhopal was used for the production of various pesticides, mainly Sevin brand carbaryl insecticide and Temik brand aldicarb pesticide. All the pesticides produced at UCIL were sold in the Indian market. According to many, Bhopal is the site of the greatest industrial disaster in history. On the night of December 23, 1984, a dangerous chemical reaction occurred in the Union Carbide factory when a large amount of water got into the MIC storage tank # 610. The leak was first detected by workers about 11:30 p.m. when their eyes began to tear and burn. They informed their supervisor who failed to take action until it was too late. In that time, a large amount, about 40 tons of Methyl Isocyanate (MIC), poured out of the tank for nearly two hours and escaped into the air, spreading within eight kilometers downwind, over the city of nearly 900,000. Thousands of people were killed (estimates ranging as high as 4,000) in their sleep or as they fled in terror, and hundreds of thousands remain injured or affected (estimates range as high as 400,000) to this day. The most seriously affected areas were the densely populated shanty towns immediately surrounding the plant -- Jayaprakash Nagar, Kazi Camp, Chola Kenchi, and the Railway Colony. The victims were almost entirely the poorest members of the population. This poisonous gas, caused death and left the survivors with lingering disability and diseases. Not much is known about the future medical damage of MIC, but according to an international medical commission, the victims suffer from serious health problems that are being misdiagnosed or ignored by local doctors(Lancet, "Round...").
Exposure to MIC has resulted in damage to the eyes and lungs and has caused respiratory ailments such as chronic bronchitis and emphysema, gastrointestinal problems like hyperacidity and chronic gastritis, ophthalmic problems like chronic conjunctivitis and early cataracts, vision problems, neurological disorders such as memory and motor skills, psychiatric problems of various types including varying grades of anxiety and depression, musculoskeletal problems and gynecological problems among the victims. It is estimated that children born in Bhopal after the disaster face twice the risk of dying as do children elsewhere, partly because parents cannot care for them adequately. Surprisingly enough, despite the serious health problems and the deaths that have occurred, Union Carbide claims that the MIC is merely a "mild throat and ear irritant" (Lancet, "Round..." p.952).
The Bhopal disaster was the result of a combination of legal,technological, organizational, and human errors. The immediate cause of the chemical reaction was the seepage of water (500 liters)into the MIC storage tank. The results of this reaction were exacerbated by the failure of containment and safety measures and by a complete absence of community information and emergency procedures. The long term effects were made worse by the absence of systems to care for and compensate the victims. Furthermore, safety standards and maintenance procedures at the plant had been deteriorating and ignored for months. A listing of the defects of the MIC unit runs as follows:
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Gauges measuring temperature and pressure in the various parts of the unit, including the crucial MIC storage tanks, were so notoriously unreliable that workers ignored early signs of trouble (Weir, pp.41-42).
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The refrigeration unit for keeping MIC at low temperatures (and therefore less likely to undergo overheating and expansion should a contaminant enter the tank) had been shut off for some time (Weir, pp.41-42).
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The gas scrubber, designed to neutralize any escaping MIC, had been shut off for maintenance. Even had it been operative, post-disaster inquiries revealed, the maximum pressure it could handle was only one-quarter that which was actually reached in the accident (Weir, pp.41-42).
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The flare tower, designed to burn off MIC escaping from the scrubber, was also turned off, waiting for replacement of a corroded piece of pipe. The tower, however, was inadequately designed for its task, as it was capable of handling only a quarter of the volume of gas released (Weir, pp.41-42).
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The water curtain, designed to neutralize any remaining gas, was too short to reach the top of the flare tower, from where the MIC was billowing (Weir, pp.41-42).
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The lack of effective warning systems; the alarm on the storage tank failed to signal the increase in temperature on the night of the disaster (Cassels, p.19).
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MIC storage tank number 610 was filled beyond recommended capacity; and
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A storage tank which was supposed to be held in reserve for excess MIC already contained the MIC (Cassels, p.19).
Ironically, in Bhopal, the people living around the Union Carbide plant were warned of potential hazards in a series of local newspaper articles, but residents ignored these warnings because they did not know how to react to them, while local officials dismissed them as sensationalist reporting (Technology Review, p.73).
Interestingly enough, Carbide tried to hide its poor safety and maintenance record along with the other faults already mentioned, by claiming publicly that the company was the victim of sabotage by a 'disgruntled employee'. Yet, Carbide didn't release the name of this employee or bring charges against him/her. However, there is evidence to the contrary which supports the view that Carbide (both the parent company and its Indian subsidiary) was a negligent company that failed to improve its deteriorating plant. Incidentally, in a report (May 1982) of the Indian subsidiary conducted by a three-member safety team from the Union Carbide headquarters in the U.S., indicated that "a serious potential for sizeable releases of toxic materials in the MIC unit either due to equipment failure, operating problems, or maintenance problems thus requiring various changes to reduce the danger of the plant; there is no evidence the recommendations were ever implemented" (Weir, pp.40-41).
Furthermore, "Carbide persistently shows 'wanton and wilful disregard for the health and safety of its workers and the communities in which it operates'"(New Statesman and Society, "Surviving..." p.5). Additionally, a scientific report published by two U.S. organizations, the National Toxic Campaign and the international Council on Public Affairs, Union Carbide continues to be " 'a major discharger of toxic substances into the environment, and a major generator of hazardous waste'. In 1988, the company generated more than 300 million pounds of hazardous waste - an increase of 70 million compared with 1987" (New Statesman and Society, "Surviving..." p.5).
Carbide had dropped the safety standards at the Bhopal plant well below those it maintained at a nearly identical facility in West Virginia. It is also important to note here that Carbide was able to operate its deteriorating plant because industrial safety and environmental laws and regulations were lacking or were not strictly enforced by the state of Madhya Pradesh or the Indian government making them indirectly responsible for the tragedy at Bhopal.
B. LEGAL CLUSTER
DISCOURSE AND STATUS: DISagreement and COMPlete
This disaster gave rise to the world's largest lawsuit, one that spanned half-way around the world and dragged on for more than seven years. Although the final settlement ($470 million) satisfied the imperatives of the company and the Government of India, it was condemned by the victims (Cassels, preface).
For years after the tragedy, the delay in delivering final compensation to the victims has further propagated the suffering to the victims. Furthermore, other elements of relief ordered by the Indian Supreme Court haven't been implemented. These are the medical surveillance program, the contingency insurance and the new hospital. There has been much dissent and several organizations have voiced that the settlement with Union Carbide, made on behalf of the victims by the Indian government, should be voided. These petitioners argue that the Indian court had no authority to dismiss criminal charges or grant immunity against future charges, to Union Carbide since pleas bargaining is not permitted under Indian law.
The petitioners also argued that while the settlement amount was based on an estimated 40,000 severely injured victims, medical studies suggest the number may be closer to 400,000 (Forbes, "The ghost..." p.108). Also, many medical experts believe that liability to provide adequate compensation and facilities for the handicapped victims requiring long-term follow up and treatment should rest with Union Carbide Corporation and not with the Indian Government (Lancet, "Round..." p.952). Moreover, more than 250,000 claims were never documented or classified, making it hard for these victims to obtain compensation. Much to the anger and outrage of these groups and victims and the relief of Union Carbide, on October 1991, the Indian Supreme Court upheld the Bhopal settlement of $470 million dollars. Many feel that this is a clear signal from the Indian government that MNC's investing in the country will receive only a "slap on the wrist" in the event that something like this happens again.
FORUM AND SCOPE: INDIA and BILATeral
Issues of jurisdiction were central to the legal battle that followed the tragedy. These centered around the relationship of the parent Union Carbide Corporation to its Indian subsidiary and the appropriateness of the place where litigation is being conducted. Union Carbide Corporation maintains that it's subsidiary is separate from the parent company and so it only should be liable instead of the whole corporation. The Indian government's petition argues that insofar as Union Carbide designed, constructed, owned, and operated the plant from which the chemical escaped, the company should be held absolutely liable for all the resulting damage. Second, the company, in undertaking an activity that it knew was ultra-hazardous to the public at large, is strictly liable for the harm that was the material consequence of such activity, regardless of whether the harm that resulted was through fault of another or its own negligence. Third, the company was negligent in designing, constructing, operating and maintaining its plant and thus, failed to exercise its duty of care to protect the public from the dangers inherent in its plant and processes (Morehouse and Subramaniam, pp. 81-82).
Lawsuits were filed in both U.S. and Indian courts but ultimately, it was decided that the case should be tried in an Indian court. Lawsuits filed in U.S. courts related to the Bhopal case were refused on the grounds that the immediate location of the accident was in India, the victims were Indian, and he U.S. connection with its Indian affiliate did not appear to give it an unusual degree of control.
LEGAL STANDING: LAW
Following the disaster, the Government of India passed the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985. The Act gave power to the Central Government to represent all claimants in appropriate forums, appoint a Welfare Commissioner and other staff and to discharge duties connected with hearing of the claims and distribution of compensation. Under this Act, in 1985, the Government formulated a scheme known as the Bhopal Gas Leak Disaster Scheme, for the registration, processing, and determination of compensation to each claim and appeals arising from thereon.
Since the tragedy, the victims have waged an "unrequited struggle for justice, but they have been ill-served by the Indian government, which failed to pursue the victims' case aggressively in the Indian courts, opting instead to go easy on Union Carbide and maintain a favorable investment climate" (New Statesman and Society, "Toxin..." p.18). Union Carbide settled out of court for $470 million, thus avoiding any damaging legal precedent or liability. In return, India's Supreme Court ordered the dismissal of all civil and criminal charges against Carbide and its officers, and gave them immunity from future prosecution. The Supreme Court felt that in this case, the victims needed immediate relief, not further legal delay.
International Law at present plays almost no role in a Bhopal scenario. Substantive international law remains weak in the area of pollution, industrial hazards, and multinational business regulation (Weir, p.46). An international treaty is needed under which it would be agreed that, if courts in a signatory country award compensation after due process of law, then the award would automatically be enforced by courts in other signatory countries (Economist, p.70).
C. GEOGRAPHIC CLUSTER
TYPE OF MEASURE: Regulatory Standard [REGSTD]
With regard to process standards, it is apparent that Union Carbide had double standards when operating its plant in India and in West Virginia. An investigation of both the UCIL plant and its counterpart in Institute, West Virginia revealed that "while the latter plant had computerized warning and monitoring system, the former relied on manual gauges and the human senses to detect gas leaks. The capacity of the storage tanks, gas scrubbers, and flare tower was greater at the Institute plant. Finally, emergency evacuation plans were in place in Institute, but nonexistent in Bhopal" (Cassel, p.19). Also, the manner in which Carbide decided to manufacture MIC was questioned at the design stage when a controversy arose regarding the question of whether substantial storage capacity or nominal storage of MIC would be required. UCC, which provided the basic design of the plant, supervised its engineering, and defined operating procedures to run it, insisted on the former [despite the fact that] UCIL felt that the latter was...inherently safer (Morehouse and Subramaniam, p.3).
ECONOMIC DATA
Estimates of the number dead and injured vary widely. Poor documentation, mass burials and cremations, and conflicting medical opinions ensure that the precise number will never be known. In addition, death records may not include homeless and transient individuals who perished. The original count of the dead was more than 2,000. By 1987, the official death toll stood at about 3,500 and by 1992, it was over 4,000. Victims' organizations placed the figure many thousands higher. In addition, 30,000 to 40,000 people were maimed and seriously injured, and 200,000 were otherwise affected through minor injury, death of a family member, and economic and social dislocation (Cassels, p.5).
ENVIRONMENTAL PROBLEM TYPE: Pollution Air [POLA]
Not very much is known about the environmental impacts of the gas leak from the Bhopal plant. The Indian Council of Agricultural Research has issued a preliminary report on damage to crops, vegetables, animals, and fish from the accidents, but these offer few conclusive findings since they were reported in the early stages after the disaster. This report however, did indicate that the impact of whatever toxic substances emerged from the Carbide plant were highly lethal on exposed animals. Large number of cattle (estimates range as high as 4,000), as well as dogs, cats, and birds were killed. Plant life was also severely damaged by exposure to the gas. There was also widespread defoliation of trees, especially in low lying areas (Morehouse and Subramaniam, pp.36-38).
CULTURE: NO
There appear to be have been serious communication problems and management gaps between Union Carbide and its Indian operation. This failure to communicate hazards was the result of the parent' companies hands-off approach to its overseas operation, and can be traced to cross-cultural barriers. These can possibly be related to "disruptions and flaws which appear in multinational operations because of "the absence of common values, norms, and expectations among managers in different nations, from tendencies towards ethnocentric attitudes, from psychological impediments to cross-cultural understanding, and from obstructions and deficiencies in the flow of information within the transnational system attributable to distance and shared ownership. The fact that the operating manuals at Bhopal were printed only in English is an emblematic example of these problems (Cassels, p.21).
TRANS-BOUNDARY ISSUES:: NO
HUMAN RIGHTS
In mid-July 1985, the government of India Health Minister stated that 36 pregnant women had spontaneously aborted, 21 babies were born with deformities, and there were 27 stillbirths, all suspected to have been caused by the poison gas leak in Bhopal. An examination of 114 women in the field clinics in two of the gas affected slums in Bhopal three months after the disaster revealed that an extremely high proportion of these women had developed gynecological diseases such as leucorrhoea (90%), pelvic inflammatory disease (79%), cervical erosion and/or endocervicitis (75%), excessive menstrual bleeding since exposure to the gas (31%), and suppression of lactation (59%). Also, there were several thousand pregnant women in the communities that were among the worst affected by the gas. Respiratory complication and the resulting hypozyia were bound to affect the fetuses as much as it did the mothers (Morehouse and Subramaniam, pp. 33-4).
RELEVANT LITERATURE:
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"After Bhopal". Lancet, Issue 603. July 16, 988.
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"Bhopal: Absolutely Liable". Economist, Volume 308, Issue 560. July 23, 1988.
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"Coping With Disaster". Technology Review, Volume 91, Issue 6. August 1988.
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Cassels, Jamie. The Uncertain Promise Of Law: Lessons From Bhopal. University Of Toronto Press Incorporated. 1993.
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Chakravarty, Subrata N. "The Ghost Returns". Forbes, Volume 146, Issue 13. December 10, 1990.
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"Editorial: Toxic Futures". New Statesman And Society. Volume 3, Issue 85. January 26, 1990.
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"Freaks of Nature: Errors of Man". World Health. January 1991.
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"Fresh Disaster At Bhopal Indian Politics Threaten To Compou" Barron's, Volume 68, Issue 5. February 1, 1988.
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Hearing Before the Subcommittee in Asian and Pacific Affairs of the Committee on Foreign Affairs House of Representatives. Ninety-Eight Congress, Second Session. December 12, 1984.
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Jasanoff, Sheila. Learning From Disaster: Risk Management After Bhopal. University of Pennsylvania Press, Philadelphia. 1994.
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Khera, S.S. The Establishment Of The Heavy Electrical Plant At Bhopal. Committee of Case Studies. The Indian Institute of Public Administration, New Delhi. 1963.
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Kurzman, Dan. A Killing Wind: Inside Union Carbide and The Bhopal Catastrophe. McGraw Hill Book Company. 1987.
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"Land That Time Forgot". Barron's. January 22, 1990.
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Lappen, Alyssa A. "Breaking Up Is Hard To Do". Forbes, Volume 146, Issue 13. December 10, 1990.
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Morehouse, Ward and Subramaniam M. Arun. The Bhopal Tragedy: What Really Happened And What It Means For American Workers And Communities At Risk. Council on International and Public Affairs. 1986.
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"Poison Gas, Up Two Bucks". Nation, Volume 248, Issue 9. March 6, 1989.
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"Round The World: India--Long Term Effects of MIC". Lancet, Issue 644. April 29, 1989.
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"Second Thoughts On Bhopal". Barron's, Volume 69, Issue 8, February 20, 1989.
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"Spectrum: Update--Reforestation, Chernobyl, Bhopal". Environment, Volume 30, Issue 5. June 1988.
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"Surviving Bhopal". New Statesman And Society, Volume 3, Issue 127. November 16, 1990.
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"The Ghosts of Bhopal". Economist, Volume 310, Issue 590. February 18, 1989.
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"Toxin Town", New Statesman And Society, Volume 7, Issue 331.December 2, 1994.
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Weir, David. The Bhopal Syndrome: Pesticides, Environment, And Health. Sierra Club Books, San Francisco. 1987.
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Kumar, Sanjay "India: The Second Bhopal Tragedy". Lancet, Volume 341, Issue 854, May 8,1993.
Source:http://www1.american.edu/ted/bhopal.htm
