Who will pay the price for industrial disasters?

The UN must formulate a treaty to hold transnational corporations accountable for their operations globally

Thirty-three years after the Bhopal gas tragedy of 1984, victims and the affected ecosystems await relief and remediation. Lessons from such industrial disasters create a compelling logic for an internationally binding treaty for transnational corporations (TNCS) and human rights. To this end, a UN resolution of 2014 created the UN open-ended intergovernmental working group to prepare a treaty.

Prior to current efforts to provide a legal remedy to wrongs committed by businesses, the UN Sub-commission on the Promotion and Protection of Human Rights approved the ‘UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights’. These norms emerged as a step towards ensuring corporate accountability in August 2003. But the report of the special representative of the UN Secretary-general on business and human rights undermined these proposed mandatory norms under the influence of International Chamber of Commerce and the International Organization of Employers.

It chose to promote the Guiding Principles on Business and Human Rights as part of advocacy for the status quo of voluntary regulation by companies while admitting that “while corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions.”

The tremendous influence of Us-based Union Carbide Corporation (UCC) became visible when I asked the chief minister of Madhya Pradesh about the disposal of the 336 tonnes of hazardous waste lying in the UCC factory, its liability and the disclosure of the report of the judicial inquiry commission on the 1984 Bhopal disaster. He chose to maintain a studied silence about all these questions. Significantly, although the Justice SL Kochar led commission submitted its report to the state government in February 2015; it has not been made public as yet.

In such a backdrop, it is remarkable that the foreign ministry under Sushma Swaraj changed India’s position with regard to a mandatory UN treaty. In its essence, the proposed treaty is an outcome of some 45 years of effort underlining that self-regulation by TNCS is not enough at all.

In order to inspire confidence, the new efforts for an enforceable treaty must ensure that business enterprises are subservient to both peoples’ will and legislative will. It should the primacy of human rights and public interest over private economic interests. It should reaffirm the hierarchical superiority of human rights norms over trade and investment treaties and develop specific state obligations in this regard.