The UN’s special rapporteur on hazardous substances and wastes has said that he is “deeply concerned” the merger between Dow Chemical and DuPont may erase any remaining possibility of the victims of the Bhopal disaster seeing an “effective remedy”, more than three decades on from the tragedy.
The two chemical giants completed the planned $130bn (£100bn) merger to form DowDuPont earlier this month, but Tuncak fears that appropriate justice for those affected by the 1984 deadly gas leak at the Union Carbide India pesticide plant will now be even more challenging to achieve.
Dow never owned or operated the factory that leaked the highly toxic methyl isocyanate fog in the early hours of 3 December 1984, but campaigners and Indian courts have tried to link it to the tragedy following its 2001 acquisition of Union Carbide Corporation (UCC) – the US-based majority owner of Union Carbide India (with 50.99 per cent shares) at the time of the disaster.
Mr Tuncak told The Independent: “The victims have faced insurmountable obstacles in getting past the corporate veil of Dow and UCC to find accountability and justice.
“This merger creates yet another layer of legal hurdles for victims to arrive at any semblance of an effective remedy and accountability for a preventable disaster now more than 30 years old.”
While he stopped short of explicitly saying Dow is responsible for ensuring the survivors of one of the world’s worst industrial disasters win due justice, Mr Tuncak said the question of where the liabilities lie remains highly complex.
“The tragedy of Bhopal and the responsibility of various actors, including Dow, has been a long-standing problem, and it has come up repeatedly throughout the course of the mandate I hold from the UN Human Rights Council,” he said.
“It shocks the conscience and defies any sense of moral or ethical norms that a company believes it can simply acquire all the assets of a company, and leave potential liabilities surrounding a case such as Bhopal.
“If legal, this can deprive victims of their right to access to a remedy for human rights abuses, and must be corrected to the extent it is allowed under the law.”
Mr Tuncak will this week present a report to the UN Human Rights Council on general good practices in handling human rights and toxic chemicals.
The document criticises corporate structures – including parent-subsidiary relationships – that “prevent access to justice”, and calls on states to ensure acquisitions “do not prevent victims from accessing remedy for human rights abuses linked to toxic exposure”.
The report reads: “Despite recognition that parent companies influence conduct within the corporate group, victims of corporate human rights abuses linked to toxic exposure can be left without justice or remedy because courts are reluctant to pierce the corporate veil.
“Furthermore, the acquisition of assets without the transfer of liabilities can deprive victims of the resources necessary to secure an effective remedy.”
Meanwhile, campaign groups also raised concerns over what they believe the Dow-DuPont merger might mean for Bhopal survivors. Joe Westby, a campaigner on business and human rights at Amnesty International, echoed Mr Tuncak’s sentiments, saying it will now be even more difficult for victims to “pin down” who is responsible.
“Already Union Carbide has been able to hide behind complex, multinational corporate structures for decades to avoid accountability,” he told The Independent. “This merger will only make that more complex, so that is why it is very worrying.”
Shares of Dow and DuPont ceased trading at the close of the New York Stock Exchange on 31 August. The Dow-DuPont merger, which was announced in December 2015, will see the new DowDuPont operating as a holding company with three separate divisions – agriculture, materials science, and specialty products. The Bhopal Medical Appeal launched a campaign targeting the Dow-DuPont merger and urging: “Don’t bury Bhopal.”
Tim Edwards, executive trustee of the UK charity that cares for survivors, said they have suffered injustice “on an epic scale”.
“Responsibility for remedying this injustice now belongs to DowDuPont,” he told The Independent. “Prior to a vote on the merger, survivors wrote to the boards of Dow and DuPont spelling out ongoing legal and reputational issues.
“DowDuPont want to bury Bhopal. They underestimate public memory; the power it holds to right historic injustice.”
Dow has consistently maintained it has no connection to or responsibility for the tragedy, which campaigners say killed as many as 22,000 people and left more than half a million others injured.
“The 1984 gas release from the plant in Bhopal, India was a terrible tragedy,” a statement from DowDuPont reads. “It is important to note that Dow never owned or operated the plant, which today is under the control of the Madhya Pradesh state government.
“Dow acquired the shares of Union Carbide Corporation more than 16 years after the tragedy, and 10 years after the $470m settlement agreement – paid by Union Carbide Corporation and Union Carbide India, Limited – was approved by the Indian Supreme Court.”
That settlement has been the subject of a lawsuit since 2010, when the Indian government sought to reopen the case after survivors, campaign groups and the government itself agreed the initial compensation level was based on disputed figures.
Amnesty’s Mr Westby claimed: “The compensation that was paid to the victims of the gas leak has been shown to be a wild underestimate of the extent of the suffering and death that was caused by the disaster.
“The figures used to calculate that compensation package are massively misjudged and were based on a discredited estimate of only 5,000 people being killed. Evidence that we have gathered, including figures from the Indian government’s own studies, puts the death toll at about 22,000 people.
“There’s a similar situation with the number of people suffering disabilities and injuries. As a result, the compensation package was hugely inadequate for the actual extent of the suffering experienced by the people of Bhopal.”
Beyond the question of adequate compensation, Mr Tuncak said there are other aspects of an effective remedy, for example the clean-up of the plant and access to safe drinking water for locals.
“Based on my understanding, toxic contamination persists around the pesticide factory in Bhopal – not simply from the gas leak, but from terrible practices during its operation, and which continues to spread,” he said.
Mr Tuncak also insisted an apology is still necessary.
“In most of the cases I’ve encountered, victims do not find closure until there’s a sincere and meaningful apology by those who have caused harm,” he added. “Responsible companies involved in toxic chemical-related human rights abuses have issued apologies to victims in the past, even in cases where they were compliant with national laws.”
Dow this week declined to comment further on the specific concerns raised.