Bhopal’s Sorry Trail to Justice : Indian Interim Award Only Points Up Need for a Better Way

Three years ago, Bhopal was front-page news. The first horrifying articles described in sketchy terms a disaster of almost unimaginable proportions. They were followed by detailed analyses that tried to make technical sense of the disaster, compilations of grim and virtually incomprehensible statistics that described its scope and individual stories that personalized it much too vividly.

But when an Indian judge last month ordered the U.S.-based Union Carbide Corp. to pay $270 million in interim damages, the news was largely confined to the business pages. Indeed, this latest development in the sad history of trying to compensate the victims of the worst industrial accident in history is seen to be of interest only for its effect on the health and stability of Union Carbide.

How did things get this way?

Almost immediately after the accident on Dec. 2-3, 1984, American lawyers were on the scene, recruiting clients among the victims. In less than a week the first of many legal actions against Union Carbide in U.S. courts was filed. By February, 1985, 145 cases were consolidated in federal court in Manhattan. In March, 1985, India enacted legislation giving it, as a sovereign, the exclusive right to represent the Indian plaintiffs; the next month the government of India joined in on the case in Manhattan. By the time the case was transferred to India, it involved approximately 200,000 plaintiffs. India also established a system for the registration of claims and has recorded more than 500,000 to date.

Somewhere along the line, reason was abandoned; it was eventually left far behind. Proposals for establishment of an independent, non-judicial tribunal for prompt payment of the claims were to no avail, as was the announced resolve of Union Carbide’s chief executive officer to reach a settlement within six months. The problem, ironically enough, flowed from the perceived superiority of the American legal system as a means of compensating accident victims.

The motivations of the plaintiffs and the government of India in originally seeking relief in American courts are perfectly understandable. U.S. courts offered them a forum with less stringent standards for establishing liability, the advantages of trial by jury and the promise of comparatively huge recoveries--about 10 times those of average recoveries in Indian courts for accidents victims.

The motivations of counsel for Union Carbide are also easy to understand. Once it became clear that the government of India had no intention of abandoning the case in the United States, they owed it to their client to use every legal weapon available in the forum chosen by the plaintiffs. They argued successfully that the proper forum for the case was India.

Once the case was moved to India, Union Carbide raised the issue of employee sabotage. The question of liability became much more difficult. Time passed. Negotiations continued. Despite the fact that both the company and the Indian government claimed an interest in settlement, little progress was made. More time passed--enough for at least two books on the disaster to be researched, written and published. Political pressures in India mounted, as did the frustrations of the victims. It is no surprise that they danced in the streets outside the Bhopal District Court as last month’s decision was announced. For them, this long delay of justice must surely seem the equivalent of its denial.

Company officials and counsel have reacted with outrage, claiming that there is no precedent, in either Indian or American law, for the award of $270 million in interim damages. Thus, even further delays seem inevitable before the victims are compensated and this sad matter put to rest.

At this point, Union Carbide must agree with the arguments the government of India made in Manhattan about how India can’t handle a massive case of this kind. Perhaps that is true. But if it is, it is equally true that the courts of this country are also ill-equipped to handle such cases. The asbestosis and Agent Orange cases are good examples of the difficulties that American courts have had in finding solutions for problems of such daunting scale for society and such overwhelming personal consequences for the victims. The simple fact of the matter is that trying to resolve complex industrial accident cases in courts--anywhere--doesn’t work.

But at present, courts are the only option. There is no international law that governs such situations--no applicable treaties and none of the practice of states that comprises “customary” international law. Other than the U.S. law establishing a compensation scheme for nuclear power-plant accidents, there are virtually no national laws designed to deal with industrial disasters. Victims will thus continue to turn to lawyers for vindication of their rights.

And future victims are almost certain, for Bhopal and Chernobyl all teach that industrial disasters are a part and parcel of life in technologically advanced societies. Americans shouldn’t fool themselves into believing that such disasters are only likely in places with foreign names. The next Bhopal might have a much more familiar name, and the owner of the facility might well be one of the foreign investors that are now so important to American industry.

How much better it would be if the next time, lawyers were able to offer an alternative to court systems, limited as they are by their procedures and susceptible as they are to all sorts of delays. How much better it would be if rather than just exercising their advocacy skills after the next Bhopal, lawyers were, before it happens, to exercise some of their other skills and serve as catalysts for development of alternative methods to deal with such situations.

On the international level this could be accomplished by working to develop a model for a non-judicial tribunal for settlement of the claims of victims of industrial disasters and by participation in conferences that have as their aim the development of a treaty applicable to such disasters. On the national level, this could be accomplished by working for strong environmental laws designed to prevent future Bhopals and by lobbying for enactment of legislation providing for a uniform compensation scheme for victims of such disasters.

Those who suggested such solutions for the Bhopal disaster shouldn’t wait for its successor before trying again.