5.10 What is there to prevent another Bhopal?
The events in Bhopal highlight the fact that industrial activity can have a far-reaching and detrimental impact on people and on the environment. The gas leak in Bhopal raised awareness of the potential ramifications of incidents at chemical plants and led many countries, including the USA, India and the UK, to review and reinforce their health and safety laws in relation to hazardous industries.
The various factors that combined to create the situation in Bhopal are as relevant today as they were 25 years ago, for instance the ability of multinationals to distance themselves from the operations of their subsidiaries abroad and the reluctance of governments of developing nations to enforce laws against multinationals in order to protect their citizens. Corruption, self-interest and the fear of discouraging inward investment on the part of multinationals all seemingly contribute to this reluctance. Another contributory factor is that due to a complex combination of legal, jurisdictional, political, diplomatic and commercial reasons the governments and courts of developed nations rarely hold multinationals based in their countries to account for their foreign misdeeds. The consequence for the population of Bhopal is that no one was able and/or willing to protect their interests.
The question is whether the international community can provide more effective protection for the vulnerable in this type of situation through the implementation and enforcement of human rights obligations. The Indian government had acceded to the United Nation’s International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1979 and so at the time of Bhopal the Indian authorities were in theory bound to ensure the implementation of the rights contained in these covenants. These rights include the right to life (Article 6 ICCPR), the right to enjoyment of the highest attainable standard of physical and mental health (Article 12 ICESCR) and the right to an effective remedy (Article 2 ICCPR). Chapter 2 of the 2004 Amnesty report contains a comprehensive review of the rights applicable to Bhopal.
Since 1984 there has been considerable development in the framing of human rights principles in environmental terms, which may help provide more focused protection for any future victims of environmental disasters. However, more generally, the reality is that the international human rights framework made little practical difference to the affected population of Bhopal, which remains uncompensated and at risk of continued harm from the contaminated plant.
Potential victims also remain vulnerable, as it is ultimately the responsibility of each state to incorporate international human rights obligations into national law, and this can be a challenge for the governments of most nations. Sensitive to the particular problems that this creates for developing nations, the ICESCR provides that its provisions are to be realised by a national government progressively according to the maximum resources available to the state. This allows a developing country, such as India, a fair degree of latitude in the implementation and enforcement of these rights. In the last ten years, both the Indian government and its courts have been more proactive in the creation and application of laws aimed at combating environmental pollution. As the economic power of India increases, so does its assertiveness in the international arena. Consequently, the probability that its government would now take a more vigorous stance in holding a multinational to account becomes more likely. However, populations in many other developing countries are still at risk from a Bhopal-type situation.
Given the limitations of the current construct of international law obligations, the focus is now on the development of a framework of human rights principles with specific application to business organisations as a means of providing more effective protection for future generations from the risks of another Bhopal. The draft UN Norms highlighted in the 2004 Amnesty report have now been superseded by the work of John Ruggie, the UN Secretary-General’s Special Representative on business and human rights.