*Saving democracy from the corporate veil* *Five things the US should do to quell the global outrage after the recent verdict in the Bhopal gas leak case and provide some justice to the victims. *
The labour pains for giving birth to an understanding of a trans-national corporation, the scope of its civil and criminal liability, its corporate veil and the chemical disaster of Bhopal is still far from over. By now it is clear that unless US government decides to act no one else can get to the bottom of the most complex industrial catastrophe known to mankind in the 20th century. Without the helpful intervention by the US President Barack Obama, the litigation process will never be able to provide justice to the victims and penalise the natural and artificial culprits. As democracies, like Indian government, is it time for US government too to act as *parens patriae* (guardian) for the past, present and future victims of Bhopal in particular and for justice seeking people of the world. The *parens patriae* doctrine which was deemed as a pioneering innovation in jurisprudence was invoked for the protection of all victims of disaster but was sabotaged. While government of India enacted itself as *parens patriae*, Dow Chemicals Company (after Union Carbide's merger in 2001) and its agent in the government have enacted for themselves a similar role for the global community of the trans-national corporations against justice seeking victims. The global outrage against such sabotage stage-managed under the guidance of US government that has become evident in the aftermath of the June 7 verdict merits President Obama's intervention to set matters right. Taking recourse to judicial escapism instead of acting to evolve a jurisprudence of liability for corporations gravely endangers people's trust in democracy everywhere. The deafening silence of the US president and legislature to ensure justice to the victims of corporation engineered mass disaster if not broken would constitute "yet another instance of American imperialism" in the words of US Judge Keenan who heard the Bhopal case in New York district court. Unaccountable and ungovernable corporations are a threat to all the democracies. If democracy in US and India is indeed non-negotiable, it merits global efforts to Dow Chemicals and Warren Anderson accountable. This is required to fix the liability of a trans-national corporation. In a historic and touching "extraordinary act a foreign sovereign government seeking justice in an American court", India had appealed to the democratic judicial system of US for relief in the matter of industrial disaster of Bhopal caused by a US multinational corporation. How democratic governments of US and India respond to provide legal remedy sets a precedent that either legitimises or delegitamises its very existence. The government of India filed a suit on September 5, 1986 for damages in the court of district judge, Bhopal (Regular Civil Suit N. 113/86) against the US company, Union Carbide Corporation, Connecticut, USA on behalf of all the persons, who have suffered damages due to Bhopal gas leak disaster praying for "a decree for punitive damages in an amount sufficient to deter the defendant Union Carbide and other multinational corporations involved in similar business activities from willful, malicious and wanton disregard of the rights and safety of citizens of India." The Indian government noted in its reply in the court that Union Carbide's management policies, states that "it is the general policy of the corporation to secure and maintain effective management control of an affiliate." If the US is indeed a democratic state, its constitution is still alive then it must make corporations like Dow Chemicals and British Petroleum liable and accountable for their acts of omission and commission. The following steps are required in US towards that end: *1.* The US government should accept the above submission of the government of India that "the corporation and its subsidiaries are treated as a unit, without regard to the location of responsibility within that unit". Consequently, an illegal act by it be deemed as the act of the corporation, without consideration to its location of responsibility. The customary alibi of corporations like Dow Chemicals is an act in sophistry designed to conceal fact of crime and criminals of the upper-world. The US government should disclose all the trade secrets of the Union Carbide Corporation and its research and development centre that Union Carbide operated in Bhopal since 1976 that was suspected to be experimenting with wartime use of chemicals. This suspicion regarding the disaster being a consequence of experimenting with war time chemicals is yet to be probed. US government should undertake and facilitate such probe. *2.* The US government must take note of the verdict by the chief judicial magistrate, Bhopal, wherein it is stated, "Warren Anderson, UCC USA and UCC Kowlnn Hong Kong are still absconding and therefore, every part of this case (criminal file) is kept intact along with the exhibited and un-exhibited documents and the property related to this case, in safe custody, till their appearance". In the interest of justice for the Bhopal victims, the US government should expedite the process of extraditing Anderson at the earliest. *3.* Dow Chemicals Company has set aside $2.2 billion to address future asbestos-related liabilities arising out of the Union Carbide acquisition. How is that Dow Chemicals can take the asbestos liability of Union Carbide and not the liability for the industrial catastrophe in Bhopal? The US government should volunteer its assistance in ascertaining the Bhopal disaster's inherited liability of Dow Chemicals Company. *4.* The US government should promote acceptance of the resolution of UN Sub-Commission on the Promotion and Protection of Human Rights that approved the 'UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights' as a step towards ensuring corporate accountability. Article 18 of the norms called on trans-national corporations and other business enterprises to make reparations for damage done through their failure to meet the standards spelled out: "Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these norms through, *inter alia*, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages, in regard to criminal sanctions, and in all other respects, these norms shall be applied by national courts and/or international tribunals, pursuant to national and international law." *5.* In memory of victims of Bhopal, the US and Indian governments should call for a mandatory regime for regulating trans-national corporations unlike UN's voluntary global compact and reject the report of the United Nations Secretary-General's Special Representative for Business and Human Rights wherein it underlined the need for voluntary regulation and self compliance by the companies saying, "While corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions. If there is one lesson that democracies across the world have clearly not learnt from industrial disasters, it is to ascertain the nature of all the genocidal acts of corporations and the very legal design of the corporation so as to make it genuinely governable by democratic legislatures. A befitting tribute to victims of Bhopal lies in learning this lesson in order to prevent future industrial warfare that irreparably undermines intergenerational equity. *Gopal Krishna is convenor, ToxicsWatch Alliance* http://news.rediff.com/column/2010/jun/15/saving-democracy-from-the-corporate-veil.htm Making India ‘Safe' For Foreign Investors, ‘Unsafe’ From Hazardous Chemicals, Asbestos And Nuclear Industries If there is indeed rule of law that governs both natural and artificial persons like companies, the proposed Companies Bill 2009 must ensure that non-executive directors remain liable for vicarious criminal liability for offences committed by the company. Independent directors are duty-bound to raise the red flag when he/she spots an inherent issue which the others could not do merely because they possess a non-independent status. Had Keshub Mahindra done so, the disaster in Bhopal could have been prevented? Is there anything on record to show that Mahindra or anyone in other corporate scandals documented their dissent? The limited liability clause in the Companies Act under which subsidiary of Union Carbide Corporation was formed must be re-examined. With regard to Board of Directors of UCC’s Board of Directors and their role, the circumstances of their historic industrial betrayal must be probed along with those of its subsidiary. Absence of rigorous liability regime for hazardous chemicals, asbestos and nuclear industries during their entire life span reveals that nothing has changed despite the disaster. How is it that Dow owns the asbestos liabilities of Union Carbide and Government of India has far failed to make it liable for Bhopal’s legacy? Unmindful of a confidential 13 page safety audit report (attached) of Union Carbide Corporation (now owned by Dow Chemicals), Indira Gandhi government was prevailed upon to grant industrial license for a plant that led to disaster in December 1984. There is a need to review The Registration and Licensing of Industrial Undertakings Rules, 1952 under which the license was granted on 31st October 1975. http://www.countercurrents.org/krishna240610.htm Blog: toxicswatch.blogspot.com On Thu, Jun 24, 2010 at 6:57 PM, Kabir Arora <[email protected]>wrote: > > > > > Making India ‘safe’ for foreign investors, ‘unsafe’ from hazardous > chemicals, asbestos and nuclear > industries<http://www.whatswiththeclimate.org/2010/06/24/making-india-%e2%80%98safe-for-foreign-investors-%e2%80%98unsafe%e2%80%99-from-hazardous-chemicals-asbestos-and-nuclear-industries/> > > > "....................The safety audit report was authored by R. T. Bradley > and covers the period from 1959 to1968. The report observes, “We have been > twice as bad as their combined average over the last ten years. We rank > seventh in the Big Seven (DuPont, Monsanto, American Cyanamid, Allied, > Celanese, Dow and Carbide, in that order).” Government of India must explain > as to how it supervises hazardous industries without sufficient industrial > intelligence and how it pre-empts possibility of production of war time > chemicals? R. T. Bradley concludes saying, “All management and supervision > must seriously want more safety–we will only get as much safety as we want, > not what we might just say we want, unless we really mean it.” It further > infers, “All of this will involve more cash outlay for loss prevention but > it will be in the form of sound investment. Our 1968 property losses, > between $5 and $10 million, indicate as much. The humanitarian aspect is, of > course, the most important consideration and should not be dollar -oriented. > However, a good measure of improvement in injury experience will almost > certainly become a corollary to reduction in property losses and business > interruption losses.” Clearly, non-compliance with such recommendations led > to Bhopal’s disaster. Isn’t it sufficient to make Government of India to > state categorically that Dow Chemicals is liable for Bhopal’s disaster? > > Efforts of US corporations to create a duality by referring to parent > company and subsidiary company as two entities is an exercise in sophistry > to which Government of India has been fallen prey by introducing Liability > for Nuclear Damage Bill in the parliament amidst massive opposition which > puts the “liability” of the private “operator” at Rs. 500 crore per > incident, with the further proviso to lower it down to Rs. 100 crore in a > manifest attempt to favour private business enterprises at the cost of > Indian citizens. The Nuclear Liability Bill is an extension of what the > Federation of Indian Chambers of Commerce and Industry (FICCI)’s 25 member > working group on civil nuclear energy-2009 had articulated in its 57-page > report too explicitly draws on the directions and observations of the > Supreme Court in Charan Lal Sahu’s case in the matter of Bhopal disaster. > This propensity is illustrated by what Peter Mason, president and chief > executive of nuclear supplier GE-Hitachi Nuclear Energy Canada said while > explaining to the Parliamentary Standing Committee of the Canadian House of > Commons on Natural Resources that is dealing with Bill C-20, their Nuclear > Liability and Compensation Act, November 2009. He contended, “If there was > not a cap and if there was no suitable legislation insurance in place, then > we wouldn’t be in the nuclear industry.” > > While British Petroleum (BP) is facing a bill of up to $34 billion from the > Gulf of Mexico disaster after US senators demanded the oil company deposited > $20 billion (about Rs 92000 crores) into a ring-fenced account to meet > escalating compensation costs. The cost of the clean-up effort and payment > of damages to affected communities, such as fishermen is about a total of $5 > billion. In India, the recommendations of Group of Ministers (GoM) on Bhopal > are following the path of Telengana in order to dilute the massive public > outrage against cover-up in the matter of justice for Bhopal disaster. The > GoM’s reported recommendation about enhanced compensation for Bhopal victims > to the tune of Rs. 1500 crores and Rs. 720 crores for rehabilitation is > pittance in comparison to what has just be set as a benchmark for Gulf of > Mexico’s industrial disaster. If Government of India does not know how to > act, it should at least learn from US President in order to make Dow > Chemical liable and make Warren Anderson face charges trial for > manslaughter. Sonia Gandhi and Manmohan Singh must learn to deal with > long-term corporate terrorism that has been underway with connivance of > government officials. An all party committee and a Joint Parliamentary > Committee must examine the dubious circumstances of the birth and death of > Bhopal’s plant and UCC’s research and development centre..." > > > > > > > > > > > > ++++++++++++++++++++++++++++++ > With deep regards > > कबीर/کبیر > > Phone:00-91-99-11-879-675 > > email: [email protected] > > email: [email protected] > > ============================== > > > -- > You received this message because you are subscribed to the Google Groups > "punjabeco-crisis - Kheti Virasat Mission" group. > To post to this group, send email to [email protected]. > To unsubscribe from this group, send email to > [email protected]<punjabeco-crisis%[email protected]> > . > For more options, visit this group at > http://groups.google.com/group/punjabeco-crisis?hl=en. > -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To post to this group, send an email to [email protected]. 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