Legal rights and wrongs: internationalising Bhopal.

Abstract

On December 2, 1984, in Bhopal, India, more than 40 tons of toxic gas escaped from the Union Carbide (UC) factory, an event predicted by an Indian journalist, whose warnings were ignored. This disaster could have changed the nature of the chemical industry and caused a reexamination of the necessity to produce such potentially harmful technologies. Not only has it changed nothing, except for the suffering of its victims, it has practically been forgotten. The immediate reaction of UC was that in the treatment of the victims. In fact, the company has never revealed what was in the toxic cloud that night. Litigation was sparked by the descent of US lawyers who gathered as many clients as they could in Bhopal and filed suits in the US. The Indian government then entered the picture and enacted a strategy which gave them sole authority to litigate on behalf of the victims. The lawsuit was subsequently transferred to India at UC's bequest, and all medical information concerning the disaster was made confidential. An important course of treatment was withheld from the victims, again at UC's insistence, because it would have been a marker of the nature of the exposure. After 5 years with no settlement, the Union of India and UC agreed on a figure of US $470 million, despite gross underestimation of the nature and extent of the injuries and even the number injured (the government estimated 4,000 permanently disabled, while independent analysis gleaned numbers up to 400,000). The settlement also ignored the possibility of longterm effects and unsuspected complications as well as of carcinogenic and mutagenic changes. The event at Bhopal and the 7-year-process of litigation require a reconsideration of the concept of compensation for longterm consequences and the responsibility and liability associated with potentially hazardous substances. The Bhopal experience shows that the origin of rights continues to rise from ownership of property instead of from the needs of individuals. Individual rights are political in nature: freedom of speech, to vote, and to form associations. Thus, there is no right to protection of the environment, which would recognize collective control of common resources. Instead, the state continues to control and own all natural resources. Since ownership of property is linked to rights, all rights can be assigned a monetary value. The value of a life is thus linked to the economic terms of its productive capacity. The environmental movement is presenting a challenge to the structure and operation of law by demanding rights for the earth's life-support systems rather than rights over property. The positive right to protection is being sought, rather than the negative relief of damage compensation.