WORKERS RIGHTS IN GLOBAL ECONOMY

Transcription

1 WORKERS RIGHTS IN GLOBAL ECONOMY The effect of Bhopal litigation on workers rights Public Lecture by George Luchiri Wajackoyah at University of Baltimore (Langsdale Library Auditorium 1420 Maryland Avenue, Baltimore, MD 21201). March 28 th 2006 from 6:00 pm-8 pm Ladies and Gentlemen, This case questions the authority of Corporate entities and its treatment of workers rights in its global operations. Many instances occur where corporate workers labor for long hours, poor conditions and peanut wages well below those imposed by International Treaties. They work in hazardous conditions, long hours, poor sanitation and poor housing and yet the host governments are not willing to regulate or impose or negotiate justice for her citizens. They fear contravening World Trade Organization (WTO), General Agreement on Trade and Tariff (GATT) and ramifications from its trading partners whose governments can simply cut off foreign aid. It is high time that these governments set legal standards in order to regulate and safeguard workers rights so that hazards such as the one I am going to address today are minimized. This lecture focuses on the unwillingness of the Union Carbide Corporation to pay compensation to factory workers who were killed by lethal gas leakage from its sister

2 carbide plant in Bhopal, India. As we all know, this incident has raised not only issues of judicial concerns, but prompted an international environment crisis. The political establishment in India on the other hand has used the event to undermine Article One of the Indian Constitution which otherwise protects surberlitan rights of the Indian people. Instead, they abdicated their role and gave the Constitution a blind date. The Union Carbide, an American Corporation refused to submit to the Indian Courts and it is not known why the late Rajiv Gandhi hurriedly constituted the Indian Parliament and passed legislation mandating the government to stand in the shoes of the injured citizens when citizens were still agonizing with death and illness. They had standing, they had the right to choose counsel of their choice, the courts were there to arbitrate and the legislative assemblies were definitely interfering with the role of the judiciary and abridging the rights of its own citizens. The Union Carbide Corporate Officers defied summons to face charges in India and I would therefore like you to draw your own conclusions to this. The New York District Court on the other hand refused to hear the case for lack of jurisdiction and directed that the case be heard in Indian. The directors have refused to appear before Indian Courts besides the issuance of summons. It is not known whether the Indian government requested its U.S. counterparts to extradite the alleged officers face charges in India. Could this have been the reason as to why the Bhopal Act was passed? On the other hand, Mr. Anderson the then Corporate head lives happily in retirement in the United States. He has been exonerated from blame by the Indian Courts as we shall see later. Well, the question I pose to you is what do you think would have happened had this disaster occurred here? Did the Indian politicians abuse power when they passed the Bhopal Act? Did the Indian Judges in this case fault the Supreme Court ruling in Kerala v. Kesavananda, when they absolved Mr. Anderson from blame? Twenty two years ago, on the night of December 2, 1984, a deadly gas leak from Union Carbide s facility killed at least 7,000 people in Bhopal, India. On the same day and around midnight, a massive leak of highly toxic MIC and other toxic chemical by-products spilled out from storage tank of the Union Carbide plant in Bhopal, blanketing the city for miles with a deadly white fog. Thousands were killed instantly from exposure to the gas as they slept or as they fled through the narrow alleys of the residential areas surrounding the plant. Hundreds of thousands were maimed and remain injured to this day. Hundreds of thousands continue to suffer from permanent disability and chronic illnesses as a result of exposure to Union Carbide s toxic gases. This catastrophe in Bhopal has been called the "Hiroshima of the Chemical Industry", the worst peacetime industrial disaster in history compared only to September 11. Studies conducted by the Indian Council on Medical Research point out that the spontaneous abortion rate in Bhopal is 24.2 % or nearly three times the national average: the rate of stillborn infants is 26.1 per 1000 deliveries compared to an all-india rate of 7.9

3 per 1000; and, even one year after the disaster, infant mortality in the city was around 110 per 1000 births whereas the national average in India is 65.2 per thousand. THE HISTORY OF UNION CARBIDE 1. In 1930, Union Carbide was implicated in America's worst industrial disaster, in the death of 700 men who died from acute silicosis while working on Union Carbide's Hawk's Nest Tunnel in the 1930s 2. In 1984, while Union Carbide denied that its Bhopal plant had been built to less rigorous standards than its plant in Institute, (West Virginia); it also adamantly claimed that such an accident could not have happened at its facility in the U.S., thereby implying that Indian workers were entirely to blame. This claim stands "thoroughly rebutted by the fact that, even at its superior operation in Institute, there had been a series of gas leaks", of which 100 U.S workers were injured eight months after the Bhopal disaster, and indeed after the plant's safety features had been vastly improved. 3. In January 1985, an internal Union Carbide report dated September 1984, three months before the Bhopal disaster, was brought to light: it warned that "a runaway reaction could occur in the MIC unit storage tanks" at Institute, and that "the planned response would not be timely or effective enough to prevent catastrophic failure of the tanks 4. Again, in April, 1986, Union Carbide was fined $1.4 million dollars for violating safety standards. 5. A former UCIL employee in charge of the Indian operations had warned Union Carbide officials of the danger of storing very large quantities of MIC in enormous 15,000-gallon tanks, and had recommended storage in smaller tanks, but he was "overridden by the parent corporation". 6. Throughout, Union Carbide attempted to divest itself of any responsibility first by blaming Sikh extremists the "Black June" and second, alleged that the leakage was the work of a disgruntled employee. Judge Keenan dismissed this theory and Union Carbide Counsel never again whispered it. Actions were commenced in various courts in India. The Union Carbide did not show interest and action was brought in the US District court in New York. Civil Contempt Under 18 U.S.C On May 12, 1986, the United States District Court for the Southern District of New York dismissed, on grounds of forum non conveniens, actions arising from the Bhopal Disaster to which Defendant Union Carbide was a party. In Re: Union Carbide Corp. Gas Plant Disaster at Bhopal, India in December 1984, 634 F.Supp. 842, at 867 (S.D.N.Y. 1986). The dismissal was conditioned upon Union Carbide s agreement "to submit to the

4 jurisdiction of the courts of India." Further, the dismissal required that "Union Carbide shall agree to satisfy any judgment rendered by an Indian court, and if applicable, upheld by an appellate court in that country, where such judgment and affirmance comport with the minimal requirements of due process." 2. Union Carbide should be held in contempt for their willful, intentional and flagrant disobedience of the orders of this Court requiring Union Carbide to submit to jurisdiction in India and to abide by the terms of any judgment rendered by the Indian courts. These orders were expressly agreed to by Union Carbide as a legal condition precedent to dismissal on forum non conveniens by Judge Keenan. By deliberately failing to obey the directives of the Supreme Court of India s civil judgment in October 1991, Defendants violated these conditions to the extent that Union Carbide did not fully submit itself to the jurisdiction of Indian courts. THE INDIA S SUPREME COURT S RULLING The Indian government hurriedly passed the Bhopal Act after the disaster, to become the sole legal representative of the victims. The government of India, led by the late Rajiv Gandhi, and in a deal brokered by the Supreme court of India, undertook a sudden turnabout without consulting the victims, and dropped all criminal charges against Union Carbide and settled for $470 million as "full and final" compensation--one sixth of the $3 billion it had sought in damages. This not only denied the victims their constitutional rights of due process, but the right to choose his/her own legal representation. This settlement, blocked all civil and criminal proceedings, present as well as future, had ramifications beyond the victims' health and compensation. The legal immunity the settlement granted Union Carbide sets a precedent which limits victims' rights and eliminates an important tool for holding Multinational Corporations engaged in hazardous activities accountable for their actions. This decision was arrived at when half of the claimants had been medically examined, and barely 10 percent of those examined had the nature of their injuries categorized for the purpose of paying out compensation. While the "full and final" compensation was being worked out, one gas-exposed person was dying every day from gas- related injuries. Despite the lack of evidence to support its figures, the government of India convinced the Supreme Court that its count of 3,000 dead and 102,000 injured (including minor and temporary as well as severe and permanent injuries) was reasonable. The decision to set "fair" compensation at $470 million was based on those numbers. By June 1990, barely a year after the settlement, more claims had been examined and the official death toll had climbed to 3,787. The number of injured stood at 202,672--about twice the number on which the settlement was based. Close to 200,000 claims still remained to be examined. Caught in the legalpolitical morass, the victims have not received the medical attention they need to tend to

5 their worsening health. Six and a half years after the accident, the classic symptoms of what has come to be known as the "Bhopal Toxic Gas Disease" persist and, in some cases, are getting worse. Actual And Constructive Fraud 3. Despite repeated summons served upon Union Carbide through the U. S. Department of Justice as a result of letters rogatory issued by the Bhopal District Court, Union Carbide has willfully refused to submit to the lawful jurisdiction of India s criminal courts. Further, the Bhopal District Court has served another summons upon the company s officials through Interpol and published a notice to appear for trial in the Washington Post. In 1994, after repeated failures to appear for trial on the criminal charges pending against it, the Bhopal District Court ordered that Union Carbide be declared a "proclaimed absconder", a term of art in Indian law which is the equivalent of the term "fugitive from justice" in U.S. law. The Court also ordered the forfeiture of all of Union Carbide s properties within India. Lawful process in the courts of India including, but not limited to, Union Carbide s agreement to the forum dismissal conditions, as well as Union Carbide s acknowledgment and acceptance of the Supreme Court of India s judicial mandate regarding criminal proceedings. Further, the Defendants clearly had intent to deceive the victims by inducing them to accept terms and conditions of settlement with which Union Carbide had no intent to comply. Violation Of International Criminal Law Under 28 U.S.C Union Carbide s conduct amounted to a violation of international criminal law which prohibits widespread or systematic killings or other inhumane acts perpetrated against a civilian population. 5.Under this norm of international criminal law, and as evidenced by state practice in international and national prosecutions involving mistreatment of war prisoners and civilians, the term "murder" includes the creation of conditions likely to result in death if the culpable conduct rises to the level of common law manslaughter. Further, international law does not require that any nexus or connection between this norm of international criminal law and armed conflict of any kind whatsoever. Lastly, international law expressly provides for individual liability for this particular offense, even absent state action or any governmental involvement. 6. Union Carbide had specific knowledge that MIC is an extremely volatile and highly dangerous chemical substance. Union Carbide s conduct in failing to design, construct, maintain and operate a safe plant exposed the people of Bhopal in its environs to a grave risk of serious harm and/or death which was foreseeable and which Union Carbide knew might occur. Union Carbide caused to be implemented, directed and supervised a deliberate policy of double standards in the design, operation, of safety

6 facilities and emergency-preparedness of its UCIL plant when compared to the plant in Institute, West Virginia. Union Carbide directed, supervised, controlled and/or caused to be implemented a specific policy of cost-cutting which resulted in the UCIL facility operating on a subsistence basis, thereby creating conditions that could foreseeably result in widespread death and serious physical injury to victims and other Class members. 7.As a direct and proximate result of the conduct of Union Carbide, numerous thousands of class members, including the Plaintiffs, suffered agonizing, lingering and excruciating deaths, serious and permanent injuries, including but not limited to, acute respiratory distress syndrome, ocular and gastrointestinal injuries, and pain, suffering and emotional distress of immense, continuing proportion. The survivors, who experienced an unimaginable and unforgettable catastrophe, witnessing the virtual destruction of their families and entire communities, have suffered and will continue to suffer severe psychological distress. Further injuries to such persons through the manifestation of illnesses, and to generations not yet born, are reasonably certain to occur in the future. As a further direct and proximate result of Union Carbide s conduct, the families and relatives of the dead have suffered, and will continue to suffer, from the loss of support, aid, comfort, society and companionship of the deceased. Finally, as another direct and proximate result of Union Carbide s conduct, numerous Plaintiffs and Class members have lost personal income, are unable to work as a result of their injuries and have been reduced to penury. Racial Discrimination In Violation Of International Law Under 28 U.S.C The Union Carbide acts were the direct consequence of Union Carbide's deliberate policy of systematic racial discrimination against Indians, which took place under color of law and actual or apparent authority within the meaning of 42 U.S.C because Union Carbide acted as a joint venture with the Union of India which held a direct financial stake in the UCIL facility. 9. Customary international law not only prohibits racial discrimination, but the norm rises to the level of a jus cogens prohibition. The International Convention on the Elimination of All Forms of Racial Discrimination ("ICERD") defines racial discrimination in Article 1 as "any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms." Further, the International Covenant on Civil and Political Rights, to which the United States is a party, prohibits all acts of state discrimination, not just systematically discriminatory policies. Cruel, Inhuman And Degrading Treatment Under 28 U.S.C The intentional and outrageous conduct of Union Carbide had the effect of grossly debasing the value of life of class members including the victims and

7 subjecting them to extreme humiliation by directing policies based on contempt of their very existence. As a result of Union Carbide's inhumane actions, many of the victims of the Bhopal Gas Disaster have undergone excruciating deaths, while many of those who have survived the Disaster have been forced to live in penury and to suffer debilitating illnesses without medical attention. 11. Union Carbide's conduct resulted directly, through permanent or lasting defects to the victims' chromosomal structure, or through birth defects or neurological illness which are the result of exposure of class members including the victims to toxic chemicals, in derogation at the most fundamental possible level of the inherent, basic human rights guaranteed by customary international law. By Union Carbide's acts, victims have been fundamentally harmed in their persons and forced to experience genetic defects, congenital abnormalities, mental disorders and illness of various kinds that affect their most basic integrity as human individuals. Violation Of The Rights To Life, Health And Security Of The Person Under 28 U.S.C The right to life is the most fundamental of human rights and has been widely recognized as a non-derogable norm of customary international law in almost every international instrument. Without question, therefore, this right is both universal and obligatory under international law. The right to life is specifically applicable to cases involving severe environmental harm. For example, the United Nations Human Rights Committee has expressly ruled that a complaint alleging large-scale dumping of nuclear waste which threatened the lives of local residents stated a prima facie case for a violation of the right to life under Article 6(1) of the International Covenant on Civil and Political Rights. 13. A wide variety of international instruments including, but not limited to, the International Convention on Economic, Social and Cultural Rights ("ICESCR")(art. 12), the Universal Declaration of Human Rights (art. 25), the African Charter (art. 16), the American Declaration (art. XI), the Rights of the Child Convention (art. 24), contribute to the consensus that the right to health constitutes a peremptory norm of customary international law. The ICESCR, the Vienna Declaration and the U.N. Human Rights Commission have all found environmental destruction and pollution to threaten the right to life and/or health is cognizable violations of international law. 14. Union Carbide s unlawful conduct violated the citizens fundamental human rights including the following: right to life, health and security of the person as guaranteed in Article 3 of the Universal Declaration of Human Rights and Article 7 of the Universal Declaration which provides that "all are entitled to equal protection against any discrimination in violation of this Declaration." Further, Union Carbide s conduct violated Article 6(1) of the International Covenant on Civil and Political Rights which states "[n]o one shall be arbitrarily deprived of his life" and Article 9(1) of the Covenant which expressly recognizes the right to security of the person. Since these treaties and

8 conventions are declaratory of customary international law, Victims assert the violation of these rights as violations of the peremptory norms of the law of nations. Violations Of International Environmental Law Under 28 U.S.C International law, as evidenced by a number of widely adopted international instruments, has recognized a minimum right to a safe environment as a customary norm. In the Stockholm Declaration on the Human Environment, 114 nations declared that "[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well being, and he bears a solemn responsibility to protect and improve the environment for present and future generations." In the Rio Declaration on Environment and Development, 178 states affirmed in Principle 1 that human beings "are entitled to a healthy and productive life in harmony with nature." Article 11(1) of the Additional Protocol to the American Convention on Human Rights, for example, provides that "everyone shall have the right to live in a healthy environment." 16. The Declaration of the United Nations Conference on the Human Environment, Principle 21, establishes under international law "the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the national jurisdiction." In the Convention on the Transboundary Effects of Industrial Accidents, the Preamble cites Principle 21 of the Declaration as well as the "polluter-pays principle as a general principle of international environmental law." Further, the Convention provides, as an instrument "underlining the principles of international law and custom," that the Parties to the Convention such as the United States "shall, in accordance with their legal systems provide natural or legal persons who are being or are capable of being adversely affected by the transboundary effects of an industrial accident in the territory of a Party, with access to, and treatment in the relevant administrative and judicial proceedings, including the possibilities of starting a legal action and appealing a decision affecting their rights, equivalent to those available to persons within their own jurisdiction." 17. Both international practice and domestic custom support the universal and obligatory nature of an international legal norm prohibiting widespread, severe and long-term environmental harm that threatens internationally recognized rights to life, health and security of the person. In total, states have adopted some 350 multilateral treaties and 1,000 bilateral treaties protecting the environment. In domestic legal systems, an obligation to protect the environment or the right to a safe environment is enshrined in the constitutions of approximately 60 nations. Therefore, at a minimum, customary international law provides that large-scale environmental harm which threatens the right to life and security of the person constitutes a violation of its jus cogens. 18. As a result of Union Carbide's conduct, victims rights under international environmental law were violated by the introduction of toxic chemicals and other waste materials from the leak of MIC into the city of Bhopal. This contamination continues to this day to pollute the Plaintiffs' environment and habitations in water,

9 livestock, agricultural products, soil and air, in violation of customary international law regarding protection of the human environment. Consistent Pattern Of Gross Violations Of Human Rights Under 28 U.S.C Customary international law, which forbids even a single violation of its fundamental rights and peremptory norms, such as the right to life, also provides that a separately cognizable violation may be based on an aggregation of such violations. International law prohibits a consistent pattern of gross violations of internationally recognized human rights perpetrated under color of law. Where, as here, the violations in question are repeated and/or severe enough to give rise to numerous claims, the Alien Tort Claims Act (28 U.S.C. 1350) provides that the conduct in question may be actionable as a "consistent pattern." According to the Restatement (Third) of Foreign Relations Law, this norm forbids "infringements of recognized human rights that are not violations when committed singly or sporadically." 20.Union Carbide s conduct, amounted to a consistent pattern of gross violations of recognized human rights insofar as Union Carbide operated and maintained a plant in Bhopal, India which continuously posed a grave risk of death and/or serious physical injury to the surrounding population; that each incident manifesting its depraved indifference to the grave risks posed to that population amounted to a violation of recognized human rights to life, health and security of the person; that there were several, repeated incidents of such toxic leakage which injured workers and hundreds of nearby residents; and that Union Carbide on each occasion ignored the grave risk of death and serious physical injury posed by its facility in Bhopal. In addition, Union Carbide s conduct after the Bhopal gas disaster demonstrates a consistent pattern of gross violations of recognized human rights because of its failure to provide adequate information about MIC to those treating the victims, including, but not limited to, Union Carbide s failure to disclose any information on the medical consequences, toxicity or ultra hazardous character of MIC prior to and after the occurrence of the Disaster. Further, Union Carbide s purposeful absconding from the criminal jurisdiction of India s courts also represents a continuous, ongoing violation of the Plaintiffs' right to a remedy at law in violation of customary international law, as embodied in Article 8 of the Universal Declaration of Human Rights which states that "everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights guaranteed to him by constitution or by law" and Article 2(3) of the International Covenant on Civil and Political Rights. CONCLUSION 21. Union Carbide owed a duty to Bhopal victims and the class to exercise reasonable care in designing, operating and maintaining the UCIL facility as well as in manufacturing the pesticides produced therein and disposing of them properly in connection with their manufacture.

10 22. Union Carbide breached its duty of care by engaging in the negligent manufacture and disposal of pesticides, chemicals and toxic effluents which contaminated the land and soil around its facility in Bhopal prior to the Bhopal Disaster and by otherwise failing to employ safe, prudent and technologically current techniques to prevent the discharge toxic chemicals, effluents and other by-products into the environment. 23. Union Carbide was negligent in one, some and/or all of the following respects: in using technology inadequate for the manufacture of pesticides and disposal of chemical by-products of that process; in failing to utilize proper technology and disposal mechanisms to prevent the contamination of the environment surrounding its Bhopal facility with pesticides, toxic chemicals and its by-products; in failing to exercise due care in the manufacture and disposal of its chemical products; in failing to prevent spills, discharges and other leaks of pesticides, toxic effluents and chemical by-products; in failing to warn the inhabitants of the residential communities surrounding its Bhopal facility of the toxicity of the chemicals manufactured therein; in failing to take reasonable precautions or exercise reasonable care to publish, adopt and enforce safe methods of disposal of its pesticides, toxic chemicals and chemical by-products; in failing to disclose to victims and the Class medical research and tests conducted by them on the toxicity of the products released by Union Carbide. into the environment; in failing to test all chemical products released into the environment for adverse health effects, or to cause said products to be tested; in concealing from victims information concerning the effects of such products in humans and animals; in failing to adequately monitor the health of victims exposed to toxic chemicals, pesticides or its chemical by-products. 24. Union Carbide s breach of duty was wanton, outrageous, reckless and intentional. Union Carbide made the decision for its own economic gain to dump chemical byproducts and toxic effluents from its manufacture of pesticides into the environment, and thereby to expose victims and the Class to toxic chemicals including, but not limited to, benzene, lead, mercury, hydrocarbons and other toxins, knowing that such substances were toxic to humans. Public Nuisance 25.Union Carbide s conduct and the resulting contamination of the environment in and around its pesticide-manufacturing facility in Bhopal has created a public nuisance which endangers and will continue for many years to endanger the safety, health and comfort of a large number of persons. This contamination has been scientifically determined to be unrelated to the release of toxic chemicals from the UCIL facility on December 2-3, 1984, but has affected the same Class of individuals who were exposed to Union Carbide s toxic chemicals as a result of the Bhopal Disaster, exacerbating the harm, physical injury and severe damage to health caused by that incident. Thank you.

11 Workers Rights in the Global Economy and the Missing Link of Immigration Reform *Tuesday, March 28 th, 6:00 p.m.-8:00 pm. *University of Baltimore-Langsdale Library Auditorium (1420 Maryland Avenue, Baltimore, MD across the street from the Law School) *Free, and open to the public *Refreshments will be served *For more information, contact Nicole at: *Sponsored by the University of Baltimore National Lawyers Guild The living conditions endured by U.S. farm workers, who earn below minimum wage. Forced labor and slavery have been documented in Florida as recently as Photo Credit: Coalition of Immokalee Workers Protests on the 17 th anniversary of the Union Carbide gas leak in Bhopal, India. The disaster killed as many as 10,000 people, and exposed hundreds of thousands more. The disaster has become an example of corporate irresponsibility. Photo Credit: The Bhopal Memory Project Speakers include: Professor Marley Weiss, Labor lawyer, from the University Of Maryland School Of Law, speaking on workers' rights in the global economy Ruben Chandrasekar from the American Friends Service Committee's Project VOICE, speaking on the root causes of migration and sharing immigrants stories George Luchiri Wajackoyah, International Comparative Human Rights lawyer, speaking on the effect of the Bhopal litigation on workers rights Dinesh Tripathi, International Human Rights lawyer, speaking on workers' rights in Nepal

12 Local Workers Rights Groups: United Workers Association of Baltimore CASA de Maryland (invited)