[Reader-list] Sunita Narain: Not learning from Bhopal

[Kshmendra Kaul]

Dear Rakesh
 
I am aware of ICJB positions and the 'wish list' and that is why I mentioned the 'other aspects' (in addition to 'my understanding') where ICJB and others have raised objections to hitherto reached understandings.
 
Unfortunately the world does not function on such well-meaningness alone. It goes by legalities. 
 
It would have to be a very competent legal case that challenges the inadequacy of the Supreme Court of India overseen Compensation Settlement and for imposing additional liabilities and responsibilities on DOW and EIL and/or Madhya Pradesh and Central Govt.
 
It would be excellent if there is such a case and it is won in favour of those that suffered (humans and the environment).  So far all such efforts in Indian and USA courts have not met with success.
 
Kshmendra
 


--- On Sat, 12/5/09, Rakesh Iyer <rakesh.rnbdj at gmail.com> wrote:


From: Rakesh Iyer <rakesh.rnbdj at gmail.com>
Subject: Re: [Reader-list] Sunita Narain: Not learning from Bhopal
To: "Kshmendra Kaul" <kshmendra2005 at yahoo.com>
Cc: "sarai list" <reader-list at sarai.net>
Date: Saturday, December 5, 2009, 6:22 PM


Dear Kshamendra jee

I am directly taking the parts put up on the website of International Campaign for Justice in Bhopal, to specify the legal liabilities of DOW, which have been demanded: 


As the current owner of Union Carbide, the Dow Chemical Company must: 

FACE TRIAL: Ensure that Union Carbide and Warren Anderson present themselves in the Indian courts, and cease to abscond from the Chief Judicial Magistrate’s court in Bhopal.
PROVIDE LONG-TERM HEALTH CARE: Guarantee access to medical rehabilitation for the persons exposed to toxic gases and contaminated groundwater and their children. This includes medical care, health monitoring and necessary research studies. Further, the company must provide all information on the health consequences of the leaked gases and contaminants in the ground water. 
CLEAN UP THE POISON: Clean up toxic wastes and contaminated groundwater in and around the Union Carbide factory site. Provide safe water to the community, and just compensation for those who have been injured or made ill by this contamination and/or have had their property damaged. 
PROVIDE ECONOMIC AND SOCIAL SUPPORT: Provide income opportunities to victims who cannot pursue their usual trade as a result of exposure-induced illnesses and income support to families rendered destitute due to death or incapacitation of the breadwinner of the family.
The view that DOW has no legal liability because it bought the plant after the incident took place has no legal sanction. When one company takes over another, just as the bought over plant's assets are now the assets of the one who bought it, its liabilities are also transferred over to the latter. One can't say that if I buy a company, and its assets are mine, but its' liabilities aren't. This is not legally tenable. Which is why DOW chemicals had to shell out $ 330 million for a UCC plant (after acquiring it) for over-exposure to asbestos to the local workers as an out-of-court settlement, that too within a year of acquiring it. Why then double standards?

The only major question, which is legal rather than ethical, is whether UCC had a control over UCIL or not. That is the question (the only one) on which UCC and DOW can conveniently parrot their claims of not giving compensation, simply because although UCC had about 50% shares of UCIL, one can legally question whether UCC had any control over it. In one of the documentary sessions organized in my college, this issue was certainly raised. The answer to this, was given by a lawyer that yes, UCC (and now, DOW) have to ensure rehabilitation of those who were affected by the tragedy, in light of the US and the Indian laws. Infact, the first judgement on this issue was given in a US court, which said that since the matter pertained to victims living in another country (India), the matter should be decided in the courts of that country, and not the US. 

As for the clean up of the site, Indian and American Constitutions state that it's DOW (previously UCC) which has to clean up the site; it's their responsibility. As for compensation, DOW legally may not have to compensate, but morally they should. 

Here, I would like also to mention one more thing. Rajiv Gandhi, the then PM, had refused a compensation of $490 million from UCC, and then the settlement the Indian Govt (representing the victims) and the UCC finally reached at, was $470 million. What a shame indeed! 

I would also like to know hopefully, before my death, who gave the Indian govt. the right to represent the victims, when it was the Indian govt. which was guilty in the first place, having allowed a plant with faulty designs and in violation of the norms (environmental and legal) to function? 

Rakesh

--- On Sat, 12/5/09, Kshmendra Kaul <kshmendra2005 at yahoo.com> wrote:


From: Kshmendra Kaul <kshmendra2005 at yahoo.com>
Subject: Re: [Reader-list] Sunita Narain: Not learning from Bhopal
To: "Rakesh Iyer" <rakesh.rnbdj at gmail.com>
Cc: "sarai list" <reader-list at sarai.net>
Date: Saturday, December 5, 2009, 5:43 PM


Dear Rakesh
 
It would so appear that the purchase by DOW Chemical of Union Carbide was so structured that DOW has no liability arising out of the operations of what was Union Carbide India. 
 
As far as compensation is concerned, DOW therefore, it would seem, carries no liability. I do not think venting against DOW is of any consequence.
 
As far as compensation liability of Union Carbide India is concerned, it seems to have been sealed with the compensation settlement overseen by the Supreme Court of India.
 
Plant Clean-Up at Bhopal also does not seem to have anything to do with DOW Chemical.
 
It would seem that the State and/or Central Govt. messed it up in leaving unaddressed as to who was responsible for the Plant Clean-Up. 
 
It appears that with the other legalities that took place, the responsibility for Plant Clean-Up now lies with the State and/or Central Govt.
 
This is my understanding. I could be wrong.
 
There are however other aspects:
 
- Questions of whether the responsibility of DOW can actually cease under the ethics of 'merger'. Also applies to Eveready India who purchased Union Carbide India. 
 
- Who is responsible for 'environmental devastation', the full impact of which it might not have been possible to assess at the time of 'settlement'
 
- Whether knowingly incomplete disclosures were made which substantially diminished recognition of the seriousness of the 'human and environmental devastation' resulting in the short and long term from the accident.
 
Kshmendra

--- On Sat, 12/5/09, Rakesh Iyer <rakesh.rnbdj at gmail.com> wrote:


From: Rakesh Iyer <rakesh.rnbdj at gmail.com>
Subject: Re: [Reader-list] Sunita Narain: Not learning from Bhopal
To: "Kshmendra Kaul" <kshmendra2005 at yahoo.com>
Cc: "sarai list" <reader-list at sarai.net>
Date: Saturday, December 5, 2009, 4:27 PM


Dear Kshamendra ji

Thanks for putting this mail. People would also be distressed to know that Dow Chemicals (the company which bought over Union Carbide and has refused to accept the liabilities of Bhopal plant and its victims), has been invited by the Tamil Nadu Govt. to start plants in Kancheepuram & Guindy (which is just near my college). 

It is an utter shame indeed that 25 years after Bhopal, we have refused to learn the lessons. (Dow has refused to even clean the plant at Bhopal, forget about providing compensation). 

Rakesh