The Bhopal Medical Appeal (BMA) is a UK registered charity working closely with grassroots organisations in Bhopal, India, funding health care for survivors of the 1984 Bhopal gas Disaster, along with those affected by the ongoing toxic contamination crisis, whilst supporting the battle for legal redress and environmental remediation.
BMA remains gravely concerned over the toxic contamination legacy of the abandoned Union Carbide pesticides factory which is not only the site of the 1984 gas tragedy but also the cause of a groundwater contamination crisis still ongoing more than three decades later.
BMA is further concerned at the Unites States Government’s apparent violation of a Mutual Legal Assistance Treaty, signed with the Government of India, which is seriously impeding prosecution of Union Carbide, still wanted in India to answer charges the equivalent of manslaughter relating to its role in the 1984 disaster.
In both cases, it appears that the fundamental right of access to remedy, for Bhopal Disaster survivors, is being denied by the actions of representative governments notionally committed, through a variety of international agreements and covenants, to upholding non-derogable human rights and international law.
Ongoing Contamination Disaster
Toxic waste dumped by Union Carbide while the factory was in operation continues to poison the environment around the now abandoned site. Chemicals leach from the dumped waste into local groundwater, which is still used as the primary water supply by thousands of families. Among the chemicals leaching in to the aquifer are those with mutagenic, carcinogenic and teratogenic properties, chemicals that are now causing a second, slowly unfolding disaster.
There has never been a comprehensive contamination assessment but, given the sporadic testing that has taken place, 22 communities comprised of an estimated 50,000 people are acknowledged to have been affected. In some cases, they will have been consuming dangerously contaminated water for decades.
In response to an appeal from the International Campaign for justice in Bhopal, in 2014, UNEP offered to perform a comprehensive contamination assessment but, without offering any explanation, the Indian Ministry of Environment, Forests & Climate Change has declined to issue a formal invite to UNEP.
UNEP’s involvement would ensure the survey being carried out to the best international standards, thereby assuring greater credibility in any courts of law than might otherwise be the case if carried out by any national agency.
Our concern is that Bhopal survivor organisations and their advocates have little way of influencing decision makers in order to bring about a constructive appraisal of UNEP’s highly positive offer of assistance. Given the large number of families still affected by the chemicals that have leached in to the water, and suffering health problems as a result, the situation is in essence a major public health crisis and an assessment of the spread of contamination is quite clearly amongst the very first steps required in order to understand the problem and create a strategic plan for rehabilitation of the contaminated areas.
Outstanding Criminal Charges and Abuse of Mutual Legal Assistance Treaty
We ask that the General Secretary take cognisance of the fact that: criminal prosecution of those whom investigators consider to be responsible for the 1984 Bhopal Gas Disaster resumed 24 years ago; but, that none of the foreign accused have ever shown for trial; and that apparent violations of a bilateral Mutual Legal Assistance Treaty, on the part of the US Government, is preventing due process being exercised in the case.
On October 3, 2005, the Government of the Republic of India and the Government of the United States of America signed the Protocol of Exchange of the Instrument of Ratification concerning Mutual Legal Assistance Treaty (MLAT) in criminal matters between the Government of the Republic of India and the Government of the United States of America. The Treaty was ratified by the President of India on 1st July, 2005 and came into force with the signing of the Protocol of Exchange.
The Treaty is designed to enhance the ability of the two countries to pursue their common objective of law enforcement by putting in place a legal mechanism enabling them to provide each other with assistance in connection with the investigation, prosecution, prevention and suppression of crime including those relating to terrorism, narcotics, trafficking, economic and organized crime.
The assistance under the Treaty includes: taking the testimony or statements of persons; providing documents, records and items of evidence; locating or identifying persons or items; serving documents, transferring persons in custody for testimony or other purposes; executing requests for searches and seizures, assistance in proceedings related to seizure and forfeiture of asset, restitution, collection of fines.
The Union Carbide Corporation (UCC) remains charged with several serious criminal offences, relating to the 1984 Bhopal Disaster, including ‘culpable homicide not amounting to murder’ and The Dow Chemical Company (Dow), UCC’s owner since 2001, has failed to ensure UCC’s appearance for trial in Bhopal.
In the opinion of lawyers working for Amnesty International:
“If UCC refuses to compensate victims of the Bhopal disaster, pay for the environmental clean-up, or submit to the jurisdiction of the Indian Court in criminal proceedings, those are all decisions for which Dow has direct management control and therefore responsibility”.
On February 26, 2004, the Bhopal Group for Information and Action (BGIA) filed an appeal in the Chief Judicial Magistrate’s (CJM) court, Bhopal, asking that Dow be summoned to show cause why it should not produce UCC before the Bhopal court in the ongoing criminal case from which UCC has been absconding since February 1992.
On January 6 2005 CJM, Bhopal ordered that summons be issued to Dow at its Michigan headquarters in the United States. Dow Chemical International Private Limited filed an appeal in the Madhya Pradesh High Court and, in response to this appeal, on March 17 2005 Justice Rakesh Saxena granted a stay on the issuing of summons against Dow in the US.
The stay was lifted by the MP High Court on 19 October 2012 after which, on 13 January 2013, BGIA moved an application at the CJM court for issuing summons to Dow. The Indian government has now forwarded four court summonses to the US Department of Justice (DoJ) which, according to the terms of the MLAT, is required to facilitate their service to Dow. But the DoJ has ignored or obstructed all four.
On May 15, 2016, a White House ‘We The People’ petition was launched criticising the US Department of Justice. The petition asked that the White House ensure the DoJ do as it is legally obliged and forward the court notices to Dow:
“In 1984 a factory majority-owned by Union Carbide (UCC, a US corporation) leaked toxic gas in Bhopal, India, killing 8K-10K people instantly & maiming 500K more. India charged UCC with manslaughter, but UCC refused to show for trial. Dow Chemical bought UCC in 2001 but has not made UCC available to face charges. Under a Mutual Legal Assistance Treaty, India sent 4 notices to the US Dept. of Justice to summon Dow to explain UCC’s whereabouts. The DoJ has ignored or obstructed every notice. The same DoJ made BP pay $4 billion in criminal fines and penalties for Deepwater Horizon. 31 years of US protection of UCC and Dow must end. We insist that the US govt. meet its obligations under Treaty & international law by immediately serving notice upon Dow to attend court in Bhopal on July 13, 2016.”
Dow did not attend the Bhopal court on July 13, 2016 and, on August 9, 2016, the White House responded to the petition stating that:
“As our Terms of Participation explain, to “avoid the appearance of improper influence, the White House may decline to address certain procurement, law enforcement, adjudicatory, or similar matters properly within the jurisdiction of federal departments or agencies, federal courts, or state and local government.” That’s why we’re declining to comment on the specific request raised in this petition.”
The response also asked that signatories refer to the highlights of Indian Prime Minister Narendra Modi’s visit to the United States in June this year:
“That being said, we’d like to note that during Prime Minister Modi’s last visit to the U.S. in June 2016, the President and Prime Minister made important strides together to advance a strategic partnership on energy security, clean energy, and climate change and reaffirmed our two countries’ cooperation on environmental stewardship.”
Given the two countries’ reaffirmed cooperation on environmental stewardship BMA remains gravely concerned that a pre-agreed treaty such as a MLAT should not be respected – particularly since, in this case, the lack of adherence to its conditions relates to an unresolved historical legacy concerning a large scale human tragedy caused by adverse environmental stewardship.
BMA hopes that the organisation of the United Nations will consider using whatever means are at its disposal to influence a just outcome of this matter.