With the world’s attention focused on BP’s troubles, the news that the Indian government this week convicted seven former employees of Union Carbide for “death by negligence” slipped under the radar. In fact, the Bhopal gas plant leak that killed thousands of people in 1984 deserves both the dignity of recognition, and respect for being a cautionary tale about what is unfolding in the Gulf. Critics such as Amnesty International have described the long-delayed legal convictions in India as “too little, too late”. Forty tons of toxins released from the plant killed 3000 people at the time of the accident, and between as many as 7,000 – 15,000 since. A horrific toll continues to be paid by victims, many suffering disfigurement, blindness and other illnesses from the poisoning. Altogether, the Indian government estimates that nearly 600,000 people have been affected by the Bhopal disaster.
BP is not Bhopal in human suffering, although the eventual scope of the health consequences from the oil spill is hardly estimable or minor. As at Bhopal, people died in the accident. And now the spreading clouds of oil are destroying livelihoods for perhaps as many – if not more people – than were impacted in India. There are as many parallels as differences between Bhopal and BP, but the key lesson from this week’s court decision in India is that our global systems of accountability are inadequate for dealing with the global impacts of corporate negligence. Just because a settlement has been reached does not mean that justice has been served.
In 1998, Kevin T. Jackson – Professor at Fordham University – published an argument in the Journal of Business Ethics advocating “a cosmopolitan court for transnational corporate wrongdoing.” Jackson was making the point, which we’ve seen realized with the Bhopal convictions, and with continuing litigation over Exxon’s Alaska oil spill 20 years ago, that national legal systems face inherent limitations in holding multinationals to task for their misdeeds.
Importantly, Professor Jackson makes the point that the current gaps in legal liability imperil both companies and victims. The absence of enforceable norms makes the competitive playing field uneven, penalizing or even jeopardizing some enterprises. Corporations also face the inefficiency and potential abuse of dealing with irregular statutes and regulations ad hoc. At the same time, even though there is a wider consensus within the international community about “the basic rights of people and the correlative obligations of business,” the largely voluntary efforts of corporations to comply with these standards have proven to be too porous.
The International Court of Justice in The Hague, which prosecutes political and military leaders for crimes against humanity, is a model to consider for addressing the legal claims that too often fall between the cracks for spanning several jurisdictions. As with the Hague, the quantity of convictions need not be great to have a qualitative impact, since the mere presence of such a court provides the jurisprudential-pus “for detecting and preventing misconduct.”
As befits a scholar, Jackson’s article carefully explores the theoretical ethics for such a court, and elaborates on both the advantages and challenges for bringing it to fruition. No doubt, such a court would be problematic to establish and manage, but it represents an important step in creating on a global basis the governance checks-and-balances for managing global risks and global consequences.
In a recent Index, Harpers noted that while over 30 executives were convicted for crimes in the dot.com crash, only two have been brought to justice for the financial crisis. An international criminal court for business will not stop malfeasance, nor necessarily increase the rate of convictions. But it will make clear to executives that misconduct carries liabilities that are far graver than a mere dent in PR reputation.
Again, we don’t know if BP is guilty of wrongdoing for this catastrophe in the Gulf, but the pattern of accidents and safety violations over the last half-decade suggests a systemic problem. Because the oil giant is one of the largest contributors to political campaigns in the United States, the process of getting to a just and truthful assignment of culpability may be very difficult. Already, several congress people and Senators have turned the blame for the oil spill onto environmentalists, regulators, or other opaque technicians in the oil economy.
President Obama has said that he will hold BP accountable for damages, but others in government seem already poised for the public to pay for the clean-up. As these things go, the final legal wrangling will likely still be unfolding several presidential terms into the future. An international criminal court, as we have seen at the Hague, would be far less susceptible to special-interest lobbying. With a multinational company spilling oil in international waters, it is exceedingly difficult to assign ownership or extract damages. Since the world shares the environmental damage, it is only right that the world have some say in the prosecution of justice.
(BP spill over-layed over Southern Ontario from www.ifitwasmyhome.com.)
