Tuesday, January 18, 2011
The Gulf of Mexico oil spill and British Petroleum’s quick efforts to pay for clean-up and compensation for victims may lead many people to falsely conclude that national and international laws operate effectively to make the polluter pay for harm. In truth, clean-up and compensation is rarely accomplished so efficiently, and laws operate to insulate polluters when they disaster occurs in poorer countries.
An obvious illustration is in Nigeria, where oil production facilities have caused 546 million gallons of oil to be spilled into the Niger Delta over the last five decades, at a rate of nearly 11 million gallons per year. The oil comes from operations owned by foreign companies including Exxon Mobil and Royal Dutch Shell that operate in the area. While many of the spills are due to sabotage and theft, there are few efforts to enforce laws, or engage in diplomacy to determine the companies’ liability or duties to stop the problems. Shrimp, crab and fish that once fed the local population have disappeared. Unlike the Gulf of Mexico, law and diplomacy have been ignored, and the local people suffer. See the NY Times Niger Delta article.
Victims of India’s Bhopal gas leak disaster In1984 also continue to suffer. Approximately 3,800 people died and several thousand more experienced permanent or partial disabilities when methyl isocyanate (MIC) gas leaked from the Union Carbide plant in Bhopal, India. The Supreme Court of India approved the final settlement of $470 million in compensation to India for the victims. In 1994, Union Carbide sold its interest in the plant to another company, and was allowed to do so under the condition that it fund a 500-bed hospital. Since then, there have been many lawsuits in the U.S. and India to provide more relief for victims and punishment for those responsible. But it is widely claimed that the law has failed the victims, as over 6,000 gas-affected patients visit hospitals in Bhopal every day, and according to a Times of India report, massive amounts of human suffering continues with little compensations over 25 years after the event.
Clearly, if the actions of one nation cause harm to another country, public international law can operate. Multilateral and bilateral agreements, conventions and customary laws operate to assign responsibility and liability. For example, international law was used to force Iraq to clean up the massive amounts of oil that it released in Kuwait’s deserts after Iraq invaded Kuwait in 1980, with an estimated 60 million cubic meters of contaminated soil still remaining today. A Reuters article reports that Iraq now pays 5 percent of its oil revenues as war reparations, and still owes Kuwait nearly $22 billion in reparations. Here, the law of war reparations was easy to apply: the only issue here is Iraq’s ability to pay it, given its current situation, and Iraq is currently asking to renegotiate its payments.
However, Bhopal and Nigeria illustrate the difficulties in obtaining compensation for harm when private international law is involved. Here, private companies caused damage and relief often must be sought through national courts using national laws. Relief is rarely fair and uniform. Innovative legal strategies are needed, and one, involving the United States Alien Tort Claims Act, will be addressed in a future blog. But suffice to say that differences in national laws mean that compensation for environmental damage caused by private actors needs to be addressed in a global way, and is ripe for International study and action. The Gulf of Mexico oil spill and the quick steps taken to provide compensation reinforced the advantages of being a victim in the United States, as opposed to being one in Nigeria or India. [MM]