ToxicsWatch, Journal of Earth, Science, Economy and Justice

Can anyone defend disposal of toxic waste from Bhopal factory of Union Carbide Corporation (UCC), Dow Chemicals Company, world's third largest chemical company without disclosing papers and reports of Madhya Pradesh (MP) High Court judges led Inquiry Commissions led by Justices N K Singh and Shanti Lal Kochar which probed the world's worst industrial disaster of 1984? 

The primary constituents of concern in the toxic waste are: benzene, ethylbenzene, toluene, chlorobenzene, dichlorobenzene, dichloropropane, trichloroethene and vinyl chloride. 

In 1997, National Environmental Engineering Research Institute (NEERI) was commissioned to find out the extent of contamination at the Bhopal plant site. NEERI found high levels of toxins like sevin (carbaryl), lindane and alpha napthol were reported in its findings. In 1998, MP government took over Bhopal plant site. In 1999, Greenpeace conducted study which detected huge level of contamination around Bhopal plant. Activists sought legal remedies in US courts against UCC for environmental harm. In 2001, Dow completed acquisition of UCC. UCC became fully owned subsidiary of Dow. In 2004, Alok Pratap Singh of SUCI filed a public interest litigation in MP High Court praying for clean-up and immediate action of the factory site by Dow. In 2005, High Court set up a task force under the chairmanship of secretary, department of chemicals and petrochemicals, Government of India for removal of toxic waste from the plant. On May 13, 2005, the High Court's order was amended to include K P Nyati of Confederation of Indian Industry (CII) in the committee. 

On May 31, 2005, the first meeting of the task force was held in New Delhi. MP Pollution Control Board (MPPCB) was chosen to act as the project coordinator for the work. CII suggested that the secured landfill site in Indore which is owned by Ramky Enviro Engineers Ltd will be suitable for the disposal of the toxic waste. The task force suggests phase-wise treatment of waste. For in-situ remediation of contaminated soil and remediation of groundwater, NEERI, National Geophysical Research Institute (NGRI) and the Indian Institute of Chemical Technology (IICT) were assigned the study by the task force. MP High Court ordered NEERI to undertake pre-treatment study. The contract for pre-treatment and packaging of the collected waste, about 390 tonnes was given to Hyderabad based company Ramky Enviro Engineers Limited. It emerged that 40 tonnes of the waste was found to be suitable for landfills. 

On July 4, 2005, the second meeting of the task force was held. The progress made in phase I work (collection of waste and preliminary analysis of samples) was reported. For phase III (dismantling and decommissioning of the plant), the IICT proposal of Rs 121.22 crore was discussed. The MP government communicated that the plant should not be dismantled and a memorial built at the site. 

On October 18, 2005, at the fifth meeting, the task force was informed by Central Pollution Control Board (CPCB) that the Gujarat Pollution Control Board (GPCB) has no objection for the transportation of tarry waste to the state. In 2006, the technical sub-committee set up under the task force is expanded to co-opt two members: P M Bhargava (formerly with the Centre for Cellular and Molecular Biology) and J. P. Gupta, Gujarat Energy Research and Management Institute. At the ninth meeting, on October 16, 2006, the task force discussed the status and profile of waste tested in laboratories. It was informed that Gujarat government will be informed that the quantity of waste to be sent for incineration is much higher. The cost of transportation and disposal was going to be borne by the Union and state government in the ratio of 50:50 vide the High Court's order of March 30, 2005. 

An the tenth meeting it was agreed that the Court would be informed that the cost of incineration would be Rs 2 crore. In February 2007, MP High Court directed that 350 tonnes should be sent for incineration to BEIL in Ankleshwar, Gujarat and the remaining 40 tonnes of lime sludge transported to the landfill in Pithampur. In October 2007, responding to the protests from environmental groups within the state, Gujarat government withdrew its NOC for one-time disposal of waste from Bhopal. In June 2008, 40 tonnes of hazardous waste was sent to the landfill site at Pithampur in Dhar district of Madhya Pradesh. It was alleged that the transfer of the waste was in gross violation of hazardous waste rules under the Environment Protection Act, 1986 as the landfill site of Ramky in Pithampur is within 500 metres of a habitation area. 

In June 2008, at the fourteenth meeting, the task force agreed to look for alternatives to Akleshwar incinerator in Maharashtra and Andhra Pradesh. NEERI and NGRI were required to complete the study by June 2010. In August 2008, Director of the Defence Research and Development Establishment, Ministry of Defence, Gwalior wrote to the Union government wherein it was claimed that the findings of the toxicity tests show that waste has very low mammalian toxicity and are non-skin irritants.

In December 2008, MP High Court reinstated its order to Gujarat government to accept 350 tonnes of waste for incineration, failing which contempt proceedings would be issued against them. 

In December 2008, Dow admitted in its 2008 annual report that present and future liabilities associated with asbestos cases against Union Carbide are expected at $2.2 billion. It inherited the burden of the UCC'S liability on its books but it refused to admit the same with regard to the liability of UCC's Bhopal factory. 

On January 19, 2009, Gujarat government filed a Special Leave Petition in Supreme Court appealing against High Court's order (CC 292/2009). The MP High Court's order was stayed. In April 2009, Bhopal Group for Information and Action and others intervened in the Supreme Court case and filed an affidavit asking that the waste be disposed off in a facility abroad as the sites in India are not ready or are inadequate to receive and dispose off the waste. On April 13, 2009, the Supreme Court heard the case. Gujarat government filed an affidavit raising legal and technical issues on the readiness of BEIL for incinerating the waste. On April 24, 2009, the Union government sought time to examine the matter. On July 20, 2009, at the eighteenth meeting, the task force agreed to set up an expert group under the chairperson CPCB to examine alternatives to the incinerator in Gujarat and to rank the alternatives in order of preference.

On October 28, 2009, at the nineteenth meeting, the task force discussed the report of the expert group set up to assess disposal facilities in the country; 5 TSDF sites are visited – Ankleshwar Gujarat, Dungigal in Hyderabad, Taloja Mumbai. The sites at Indore and Nagpur could not be cleared as the facilities were not ready. The Dingigul facility is 839 km from Bhopal and Taloja 779 km and transportation over long distances could pose problems. The expert group explored the option to incinerate the waste in cement kilns. The National Council for Cement and Building Materials conducted technical study of co-processing sludge of UCIL in cement plants and recommended blended sludge at rate of 2 per cent in kiln. The trial run was done in December 2009 and results were submitted to the task force in January 2010. Centre for Scienece and Environment (CSE) released its report showing contamination of the site in 2010. 

On January 28, 2010, the task force recommendations were presented to the Supreme Court. The Supreme Court ordered incineration of 346MT of waste at TSDF facility in Pithampur, Madhya Pradesh after a successful trail run and the case was sent back to MP High Court for further monitoring.

Group of Ministers on Bhopal decides to set up an Oversight Committee under the chairman ship of Minister of Environment and Forests during 18-21 June 2010. It had members from Government of India and Madhya Pradesh. This committee replaced the Task Force committee to help in taking remedial action in dealing with the toxic waste. In June 2011, Union of India filed an affidavit in the MP High Court stating that 346 MT of waste can be sent for incineration at a secret DRDO facility in Nagpur. The MP High Court ordered that the MP government should take appropriate steps for transportation.

On February 22, 2012, in a meeting held at the Union Ministry of Environment and Forest with representatives of Maharashtra Pollution Control Board and MP Pollution Control Board it was decided that 346 MT will be sent for incineration at the TSDF facility in Pithampur, MP. On February 24, 2012, it submitted a proposal to MP government stating that it can transport and dispose off the 346 MT in a facility in Hamburg, Germany.

On April 4, 2012, Government of India filed an Special Leave Petition in the Supreme Court and got an order directing MP government to incinerate 346 MT of toxic waste at the TSDF facility in Pithampur, Madhya Pradesh.  

On August 09, 2012, in paragraph 35 (12) of its judgement, Supreme Court recorded: "It is indisputable that huge toxic materials/waste is still lying in and around the factory of Union Carbide Corp. (I) Ltd. in Bhopal. Its very existence is hazardous to health. It needs to be disposed of at the earliest and in a scientific manner. Thus, we direct the Union of India and the State of Madhya Pradesh to take immediate steps for disposal of this toxic waste lying in and around the Union Carbide factory, Bhopal, on the recommendations of the Empowered Monitoring Committee, Advisory Committee and the NIREH within six months from today. The disposal should be strictly in a scientific manner which may cause no further damage to human health and environment in Bhopal. We direct a collective meeting of these organizations to be held along with the Secretary to the Government of India and the Chief Secretary of the State of Madhya Pradesh within one month from today to finalize the entire scheme of disposal of the toxic wastes. The above direction is without prejudice to the appropriate orders or directions being issued by the court of competent jurisdiction." NIREH stands for National Institute of Research in Environment Health.

The ultimate paragraph of Court's judgement reads: "The Registry is directed to transmit the records of the Writ Petition No. 50/1998 to the Madhya Pradesh High Court, Bench at Jabalpur, forthwith and also send copies of this order to all concerned quarters of the Union of India, the State of Madhya Pradesh, the Monitoring Committee, the Advisory Committee, ICMR, BMHRC and the NIREH for compliance of these directions without delay and default." ICMR stands for Indian Council of Medical Research and BMHRC stands for Bhopal Memorial Hospital and Research Centre.

On September 17, 2012, GIZ terminated its offer to dispose UCC's toxic waste (346MT) in a facility in Hamburg, Germany because of protest in Germany. On October 21, 2012, the Group of Ministers on Bhopal decided to incinerate 10 MT of waste similar to UCC waste at the TSDF facility in Pithampur, Indore. On January 23, 2013, CPCB was asked to conduct another trial run and submit its report to the Supreme Court. On March 4, 2013, 10MT of hazardous waste from Hindustan Insecticide Factory, Kerala was identified to be similar to UCC’s waste. Supreme Court directed that 10 MT of the waste be transported from Kerala to Bhopal and incinerated at Pithampur, Indore. On May 8, 2013, the Union of India was allowed ten weeks' further time to complete the entire process of trial incineration of 10 metric tonnes of UCC's waste at Pithampur TSDF. The government of MP was directed to ensure the safety and security of the employees associated with the facility and the officials of the Ministry of Environment and Forest and the CPCB.

On January 4, 2013, Supreme Court observed: "In this Court’s judgment in Writ Petition (C) No. 50 of 1998 etc. dated 9th August, 2012 in sub-para (12) of para 35, some directions were given with regard to the disposal of toxic materials/waste lying in and around the factory of Union Carbide Corporation Ltd., Bhopal. It has been brought to our notice by this interlocutory application that the Madhya Pradesh High Court has been monitoring the removal of the same toxic waste in Writ Petition No. 2802 of 2004 Alok Pratap Singh vs. U.O.I. And Ors. and against the orders passed by the Madhya Pradesh High Court, a Special Leave Petition No. 9874 of 2012 has been filed in this Court and a Bench of this Court is now monitoring the removal of the aforementioned toxic materials/waste. Obviously, the directions in sub-para (12) of para 35 in the judgment dated 9th August, 2012 may conflict with the orders that may be passed by the Bench hearing the Special Leave Petition No. 9874 of 2012. Hence, we delete the directions given in sub-para (12) of para 35 in the judgment dated 9th August, 2012. It will be open for the petitioner in Writ Petition (C) No. 50 of 1998 to intervene in the aforesaid Special Leave Petition (Civil) No. 9874 of 2012."

In 2013, the U.S. Court of Appeals for the Second Circuit in New York upheld U.S. District Court Judge John F. Keenan’s comprehensive decision of June 2012 in the Janki Bai Sahu et al. v. Union Carbide Corporation. Judge Keenan had concluded that UCC is not liable for any environmental remediation or pollution-related claims made by residents near the Bhopal plant site in India and ruled that UCC had no liability related to it.   

In July 2014, Judge Keenan ruled that UCC was not liable for any on-ongoing pollution from the Bhopal chemical plant in Jagarnath Sahu et al. v. UCC and Warren Anderson which was filed in 2007 in New York District Court seeking damages to clean up six individual properties allegedly polluted by contaminants from the Bhopal plant and the remediation of property in 16 colonies adjoining the plant.  

On December 2, 2014, The Atlantic reported that thousands of tons of hazardous waste remain buried underground, and the government has conceded the area is contaminated.

In 2015, a trial run was conducted to dispose of toxic waste from the UCC's plant in Bhopal. The  trial incineration of 10 tonnes of UCC waste was carried out at the common hazardous waste treatment, storage and disposal facility (TSDF) in Pithampur in Indore during August 13-18, 2015, under the supervision of the CPCB, MPPCB and the Union Environment Ministry. 

In May 2016, the U.S Court of Appeals for the Second Circuit in New York affirmed the lower court ruling in the matter of liability of UCC.  

On August 15, 2016, the U.S Court of Appeals for the Second Circuit in New York rejected the petition for a rehearing after the lower court's decision stating that UCC was not liable for any plant site pollution effects arising out of the Bhopal tragedy. 

In March 2017, the Union Minister of State of Environment assured that the Union government was committed to dispose hazardous materials from the factory site safely. 

On March 30, 2017 a news report pointed out that huge hazardous waste is still lying at the defunct Union Carbide factory of Bhopal which poses continuous hazard to the environment and public health.  A complaint was filed in the National Green Tribunal on the basis of the news report. 

A case related to disposal of toxic waste tying the factory of UCC, which is now represented by Dow Chemical Company and regarding import of hazardous waste was listed for hearing on January 10, 2018 in the Supreme Court of India. Its fate is note known.  

On July 28, 2018, Jabalpur Bench of the MP High Court ordered the MPPCB to not allow any movement of toxic waste from Bhopal's UCC site to the Defence Research and Development Organization (DRDO) incineration facility at Butibori near Nagpur. The movement was stayed till August 11, 2018. The court also directed the pollution control boards of both the states to inspect the defunct plant site in Bhopal. The court's order came while addressing an intervention appeal filed by the Maharashtra government against the MP High Court's order of July 12, 2028 that allowed the incineration of toxic waste of the Union Carbide plant in Nagpur. Maharashtra government had submitted that MP government had not sought a No Objection Certificate (NOC) from them. In the intervention appeal the Maharashtra government submitted that since there was a facility in Pithampur, near Indore, to treat such waste, the waste should be disposed off within the state itself.

On July 18, 2018, the Supreme Court reiterated its  judgments dated July 6, 2012 and 13th October 13, 1997 and October 14, 2003. It reads: "The Central Government is also directed to bring the Hazardous Wastes (Management & Handling) Rules, 1989, in line with the Basel Convention and Articles 21, 47 and 48-A of the Constitution." It was seized with issues like Preparation of a National Inventory of Hazardous Wastes; Complete identification and registration of Hazardous wastes generating units in the country;Construction of TDF/Landfills;Hazardous Waste Dump Sites; Waste Oil/Used Oil read with the order dated 23.10.2007; Setting up of laboratories at the docks/ports; Workers handling hazardous wastes and National Policy Documents on Hazardous Wastes as well as cleaner technology. It transmitted these issues to National Green Tribunal (NGT).

On April 7, 2021, MP government floated a tender to incinerate 337 MT waste of UCC's factory. The 74 page long tender stated that out of 377 MT waste, 92 MT is sevin residue and Naphthol residues, 29 MT process/ rector residue, 54 MT Semi-processed pesticide and 162 MT excavated waste/contaminated soil kept on the warehouse in iron tanks and other packaging. The tender was for only 5% of over 1.7 lakh tonne toxic waste at UCC's factory. 

On December 10, 2021, a complaint has been filed in the National Green Tribunal (NGT) on the basis of media report dated 30.03.2017 highlighting that huge hazardous waste is still lying at the defunct Union Carbide factory of Bhopal, posing continuous hazard to the environment and public health.

On December 22, 2021, by NGT's order a joint Committee of the CPCB, State PCB and the District Magistrate, Bhopal was formed to ascertain the factual position in the matter. The State PCB was made the nodal agency for coordination and compliance. The joint Committee was supposed to undertake site visit and submit factual and action taken report within two months. The report was submitted on February 22, 2022. 

On March 9, 2022, the NGTs 12-page long final order was passed factoring the report dated February 25, 2022.   

Indian soil is battling a silent and losing war. The emphasis on chemical fertilisers during the green revolution and exclusion of parameters like organic matter, carbon, soil structure and water retention capacity has led to severe soil degradation and reduced productivity. A conference on “India’s Soils: Science Policy-Practice Interfaces for Sustainable Futures” was held at IIT Delhi which brought together scientists, policy makers and practitioners and helped develop the 3M framework which recognises organic Matter, soil Microbes and soil Moisture retention capacity as the three pillars of restoring soil health. It called upon the sciences to acknowledge that soils are a living entity and to revitalize disciplines such as soil biology and soil physics. It recognised the invaluable knowledge of practitioners in restoring soils and the need to incorporate their knowledge into the policy making process. It also argued that soil health is a public good, and it must be addressed systemically at the agroecological level along with supporting farmers at the farm level. 

Gopal Krishna from ToxicsWatch Alliance (TWA), talked about larger impact of wastes on soil quality. Interestingly enough, much of technological inputs in waste management process have actually produced another set of non-recyclable wastes. Therefore, waste management as a process has to be addressed through its inter-connectedness with soil, food production and consumption, and health too. Policies should cater to increasing proportion of organic matter in waste composition rather than heavy metal. He points out to the fact of inherent contradiction within policies catered to waste management by Indian state. On one hand, it does argue for more organic waste; on the other hand, the recent data shows there is only 28-30% of organic matter and 78.9% of heavy metal in waste composition. The larger goal has to do with waste minimization instead of waste maximization. 

In other words, policies should address in increasing the content of organic waste in overall waste composition. One should also address concerns around burning of waste, because it automatically generates another set of toxic waste. Usually, the burning does happen when those category wastes do not get decomposed naturally. The idea of recyclable waste can happen only through farmers’ own knowledge about sustainable use of waste. For more details, visit www.soilsconference2017.com.

World's deadliest hazardous chemical waste from Bhopal factory is reached Pithampur, Madhya Pradesh (MP)

Self immolation attempt has been made in protest against transfer of toxic waste of Union Carbide Corporation (UCC)' Bhopal factory to Pithampur near Indore, Madhya Pradesh (MP) fearing repeat of Bhopal disaster. Notably, 12 trucks carrying 337 tonnes of toxic waste out of over over 12 lakh metric tonnes from the UCC factory stored for 40 years left for Pithampur near Indore under heavy security reached there on January 2, 2025 amid bitter protest. Former employees of the UCC's plant have shared the list of toxic substances in the factory premises. These include: 1 Ortho dichlorobenzene, 2 Carbon tetrachloride, 3 Chloroform, 4 Methyl Chloride, 5 Methanol, 6 Mercury, 7 Sevin, 8 Alpha Naphthol etc. UCC's chemical plant dealt with a multitude of organic compounds to manufacture the pesticide carbaryl (Sevin). Phosgene and Monomethyl amine (MMA) were the main raw materials involved in the process of manufacturing Methyl iso-cyanate (MIC), which in turn was used in combination with excess alpha-naphthol to produce Sevin. By-products like chloroform,carbon tetrachloride, MMA, ammonium chloride, dimethyl urea were all collected and recycled back to the process. Toxic substances stored inappropriately inside the UCC's plant site entered the soil and the ground water aquifer. The 1996 study of Indian Institute of Chemical Technology, Hyderabad had shown the presence of Heavy metals(Cadmium, Chromium, Copper, Lead, Manganese Nickel and Zinc) in wastes dumped within the factory. Naphthol and other volatile organic matter were also detected in the same waste. Leaching from these wastes was not ruled out.
 

In the backdrop of Paris Agreement's failure to address climate crisis due to resistance from. Commercial czars, the 10th session of the historic negotiations to regulate transnational corporations and other enterprises are underway in Geneva, Switzerland, at the Human Rights Council (HRC) of the United Nations (UN). The negotiations have the mandate to make the TNCs subservient to a legally binding treaty on human rights. The agenda of work of the 10th session and road map of the UN's open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights and the text oto the dated draft legally binding instrument with the textual proposals submitted by States during the ninth session is being pursued. 

The session was initially scheduled for October 2024 but it was suddenly rescheduled to December unmindful of the limitations of the participants from the Global South. 

Human Rights Council Procedural Decision A/HCR/56/116 was adopted in July 2024 to provide additional resources for the UN process. 

Notably, the UN Resolution 26/9 which initiated the UN process in 2014 gave a mandate to regulate the activities of TNCs and other international business enterprises. It has come to light that during the last two UN sessions the government of Ecuador, the Chair of the UN process has sided with corporate interests and Global North countries. It is hoped that Daniel Noboa led government of Ecuador will refrain from siding with Global North countries. Brazilian daily Folha de S.Paulo revealed in October 2023 that Noboa is the owner of two offshore companies located in Panama, according to the Panama Papers. He is reportedly linked to companies owned by his father in tax havens.

Post Rafael Correa regime in Ecuador started behaving strangely in order to procure loan from the International Monetary Fund (IMF). It revoked Julian Assange's asylum on 11 April 2019 following which he was arrested for failing to appear in court, and carried out of the embassy by members of the London Metropolitan Police. In October 2019, Lenín Moreno led government faced a series of bitter protests from the people of Ecuador. His successor Guillermo Lasso faced two impeachment proceeding, dissolved the National Assembly and did not run for election in 2023. 

Ecuador government's docile and gullible role was on display in Ottawa. The intergovernmental committee tasked by the UN Environment Assembly to conclude plastic pollution treaty is chaired by Ambassador Luis Vayas of Ecuador. The chair decided to suspend the meeting in Ottawa. The chair allowed the USA and Saudi Arabia to seize control of the negotiation like the committee’s catastrophic session in Paris. USA, Saudi Arabia, Brazil, and  Switzerland support the chair because an alternative proposal echoed the proposition of the USA. The revised draft text that had been prepared in Nairobi in November 2023 was undermined. UN Environment Assembly had adopted the plastics treaty negotiation mandate in March 2022. The third session had prepared a 31 page long zero draft text of the international legally binding instrument on plastic pollution, including in the marine environment in Nairobi. The 77 page Ottawa text came up for negotiation at the fifth session of the intergovernmental negotiating committee in Busan, South Korea during November 25-December 1 2024 but failed to finalize the text of the treaty and ended with 22 page long chair's text. The role of the chair from Ecuador has been undermined as well. 

In such a backdrop, during the negotiations on the legally binding treaty on human rights, Global South countries like China, India, Indonesia, Pakistan, Russia, Palestine, Kenya, Egypt, South Africa, Cuba, Honduras and others are stressing the focus on TNCs. The International Chamber of Commerce, the International Organisation of Employers and the US Council for International Business who are defenders of the interest of TNCs have engineered their way into the negotiations to influence the outcome of this UN process.

Some of these TNCs which are complicit in genocide, mass displacement, famine, and the destruction of land and nature want corporate impunity to prevail. The Binding Treaty process ought to inspire national legal systems and vice versa.

The Global Campaign to Reclaim Peoples’ Sovereignty, Dismantle Corporate Power and Stop Impunity brought the voices of the communities and social movements affected by corporate crime in the face of corporate lobbies. 

Forty years after the Bhopal disaster of 1984, the victims and the adversely 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.

Given the fact that corporations, banks and other business enterprises are admittedly not meant to be “democratic public interest institutions”, the decisive negotiations on an enforceable treaty on transnational corporations and human rights which are currently underway has great significance. A UN resolution of 2014 had created the UN Open-ended intergovernmental working group and tasked it to prepare the text of a binding treaty. States are due to meet in Geneva, for the 10th session of the UN's Open Ended Inter-Governmental Working Group (OEIGWG) to negotiate the updated draft of the future Binding Treaty during 16-20 December 2024. The first and second sessions of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights were dedicated to conducting constructive deliberations on the content, scope, nature and form of a future international instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.

During the third session, the Working Group discussed elements for a draft legally binding instrument prepared by the Chairperson-Rapporteur of the OEIGWG taking into consideration the discussions held during the first two sessions. At he fourth session, the Working Group's discussions focused on a zero draft legally binding instrument, as well as a zero draft optional protocol to be annexed to the zero draft legally binding instrument. During the fifth session, a revised draft of the legally binding instrument served as the basis for negotiations. At the sixth session, a second revised draft of the legally binding instrument served as the basis for negotiations. During the seventh session, a third revised draft of the legally binding instrument served as the basis for negotiations. At the eighth session, the third revised draft of the legally binding instrument with the textual proposals submitted by States during the seventh session served as the basis for negotiations. Additionally, to help advance discussions during the eighth session, States and non-State stakeholders could also comment on informal contributions presented by the Chair-Rapporteur on select articles of the instrument. During the ninth session, an updated draft legally binding instrument served as the basis for negotiations.

At its 56th session, on 11 July 2024, the Human Rights Council adopted decision 56/116 to enhance the support capabilities of the OEIGWG in line with the mandate established by the Council in its resolution 26/9, and to enhance the support capabilities in the area of business and human rights within the Office of the United Nations High Commissioner for Human Rights, for the work on the legally binding instrument.

In its essence, the proposed draft treaty is an outcome of over 50 years of effort, which underlines that self-regulation by corporations is not enough at all. As a consequence of such realization as early as July 1972, at the initiative of Government of Chile, United Nations Economic and Social Council (UNESC) had requested UN Secretary General to appoint a Group of Eminent Persons to study the role of transnational corporations in relation to developing countries and international relations. This UN Group was headed by L K Jha, former Governor, Reserve Bank of India. Developing countries Chile, India, Ecuador have been grappling with the ungovernable might of corporations like International Telephone and Telegraph Company, Union Carbide Corporation and Chevron.

The persistent efforts to enact a binding treaty for corporations expose the emptiness of voluntary UN Global Compact and UN Guiding Principles on Business and Human Rights.

Prior to the current efforts initiated by Ecuador and supported by India, China, South Africa, Russian Federation, Philippines, Viet Nam, Indonesia, Venezuela, Cuba, Algeria, Benin, Burkina Faso, Congo, Côte d’Ivoire, Ethiopia, Kazakhstan, Kenya, Morocco, Namibia and Pakistan to provide the legal remedy to wrongs committed by business enterprises, the UN Sub-Commission on the Promotion and Protection of Human Rights had approved the 'UN norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights'. These norms had emerged as a step towards ensuring corporate accountability in August 2003. 

But the report of the Prof. John Ruggie, a Special Representative of the UN Secretary-General on business and human rights undermined these proposed mandatory UN Norms under the influence of International Chamber of Commerce and the International Organization of Employers. It chose to promote Guiding Principles on Business and Human Rights in July 2011 as part of advocacy for the status quo of voluntary regulation by the companies while admitting that "While corporations may be considered organs of society, they are specialised economic organs, not democratic public interest institutions.”

The efforts of the UN working group vindicate the UN Norms which were drafted by Prof. David Weissbrodt and other co-authors for mandatory regulation of TNCs. Prof. Weissbrodt had underlined how only 1,000 of about 75, 000 TNCs had joined the voluntary UN Global Compact. Even the ones who joined are at a liberty to withdraw at their sweet will.

In order to inspire confidence the new efforts for the proposed legally enforceable mandatory treaty must ensure that business enterprises are subservient to both peoples’ will and legislative will. It should ensure that natural persons have the principle of primacy of their 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.

After the third session of the UN inter governmental working group concluded, on October 27, 2017 a representative for the USA asserted gleefully that this “binding treaty will not be binding for those who voted against it”. The US reaction to the efforts for binding treaty gives a sense of déjà vu. After the initial adoption of the mandatory UN norms, the corporations reacted sharply saying: these norms are “duplicate and unnecessary”. Prof. Weissbrodt had responded saying, the mandatory norms are indeed “duplicate” in the sense that they are based on existing laws and principles, therefore, they are necessary.     

Notably, USA did not participate in the three-year process after the adoption of the UN resolution on 26 June, 2014 at the 37th meeting of UN Human Rights Council (UNHRC). Instead, USA along with UK, France, Germany, Italy, Japan and Republic of Korea besides countries are like Austria, Czech Republic, Estonia, Ireland, Montenegro and Romania have voted against the resolution for a binding treaty. Under external influence countries like Saudi Arabia, Sierra Leone, United Arab Emirates, Gabon, Kuwait, Maldives, Mexico, Peru, Argentina, Brazil, Chile, Costa Rica and Botswana abstained.   

The Draft Report of Guillaume Long, the Chair-Rapporteur of the UN working group paving the way for the treaty was approved by consensus. It was submitted for final approval to the UNHRC in March 2018. The Elements paper towards a Treaty proposed by Ecuador remained open for comments until the end of February 2018. It formed the basis for developing the zero draft treaty for the fourth session of the UN working group in 2018.

The Report on the ninth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, presented at the Fifty-fifth session of Human Rights Council during 26 February–5 April 2024 revealed that list of participants in the exercise included members of the UN like Albania, Algeria, Angola, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia, Brazil, Cameroon, Chile, China, Colombia, Côte d’Ivoire, Cuba, Czechia, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, Ethiopia, Finland, France, Gambia, Germany, Ghana, Honduras, India, Indonesia, Iran, Iraq, Ireland, Israel, Jamaica, Japan, Kenya, Luxembourg, Madagascar, Malawi, Malaysia, Mexico, Mongolia, Mozambique, Namibia, Nepal, Netherlands, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Portugal, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Senegal, Sierra Leone, South Africa, Spain, Sri Lanka, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Türkiye, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Viet Nam. State of Palestine, a non-member was represented by an observer.

Instead of re-inventing the wheel, the UN working group ought to have adopted the proceedings of previous UN efforts and the Draft Code of Conduct on Transnational Corporations which emerged out of the report of the UN’s Eminent Persons besides the UN Norms. This Code was submitted at the special session of the UN Commission on Transnational Corporations to the UN Economic and Social Council on May 31, 1990. 

So far consistent with the legacy of Non Aligned Movement (NAM), India supported these UN efforts especially after May 26, 2014 when Sushma Swaraj took charge of foreign ministry from Salman Khurshid. Indian Government’s position on the binding treaty amid maneuvers from the European Union, USA and commercial czars merits attention.    

The tremendous influence of US-based Union Carbide Corporation (UCC) became visible when the author posed a question to the chief minister of Madhya Pradesh in October 2017 on a NDTV program co-hosted by Amitabh Bachchan, a former legislator and a veteran actor. When asked 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. The then Chief Minister and the current Union Agriculture Minister chose to maintain a studied silence about all these questions. Significantly, although the Justice S.L. Kochar led commission submitted its report to the state government in February 2015; it has not been made public as yet. In the name of trade secret, UCC has not disclosed the composition of the gas which was leaked on the night December 2, 1984. 

Meanwhile, in March 2024, the 22nd Law Commission of India published a report titled “Trade Secrets and Economic Espionage” along with a draft bill based on its consultation with likes of Associated Chambers of Commerce & Industry of India (ASSOCHAM), Federation of Indian Chambers of Commerce and Industry (FICCI), Confederation of Indian Industry (CII) and US Patent and Trademark Office.

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

Dr. Gopal Krishna

The author’s doctoral thesis is on corporate crimes and the accountability of public institutions. He is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism and monetisation of nature. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC). He is also the editor of www.toxicswatch.org.