The recent gas leak from the LG polymer gas plant has wreaked havoc in the town of Visakhapatnam in India. A toxic gas – styrene – leaked at around 3 am on May 7 from LG Polymer, a South-Korean-owned local plastic-manufacturing plant. The area was evacuated afterwards. LG Chem, the owner of LG Polymers, said that they are “currently assessing the extent of the damage on residents in the town and are taking all necessary measures to protect residents and employees in collaboration with related organizations.”

The National Green Tribunal has taken suo motu cognizance of the case and passed an order. As per the order, the gas leak has reportedly killed 11, led to the hospitalization of more than 100 – at least 25 of whom are serious cases – and upwards of 1000 people are reported to be sick. The order further states that this case “clearly attracts” the principle of strict liability. The strict liability principle has evolved from British common law jurisprudence. As per this principle, the alleged enterprise will be strictly liable to restore the damage caused regardless of their intent.

The National Green Tribunal has also ordered the setting up of a committee which will document the steps taken for providing compensation and subsequent measures to avoid recurrence. LG Polymer has been told to deposit 50 Crores with the local authorities – the district collector’s office.

However, chemical gas leaks are not new to India. The country has had a history of chemical gas leakages. One of the infamous cases was the 1984 Bhopal Gas Tragedy. In the Bhopal case, a toxic gas – methyl isocyanate – leaked out of a Union Carbide’s plant in the central Indian town of Bhopal. It officially killed thousands and has left many permanently or temporarily impaired because of the effects of the gas.

In most cases involving businesses causing harm to the local community, the focus immediately shifts to providing remedies to those who are impacted by the corporate activities leading to this harm. In India, this is usually restricted to domestic laws which hold governments responsible for providing reparation to victims. Reparations are provided through settlements with the alleged corporation as observed in the 1989 Bhopal settlement.

This does not necessarily mean that it effectively provides justice to those affected. For example, in the Bhopal case the settlement has not been able to silence the call for justice. The victims are still demanding accountability and justice for the loss of life caused due to the gas leak in 1984.

 

United Nations Guiding Principles on Business and Human Rights

Over the years, there has been a growing business-human rights movement which endeavours to hold erring corporations liable for human rights abuses caused by business activities. The major text which has emerged as part of this effort is the United Nations Guiding Principles on Business and Human Rights (Guiding Principles). The text was endorsed by the United Nations Human Rights Council in 2011.

The Guiding Principles are a set of 31 non-binding Principles which aim to establish an authoritative framework on the risks associated with adverse human rights impacts due to business activities. These principles are divided into ‘Three Pillars’ which lay out the rights, roles, and responsibilities of the different stakeholders. The Three Pillars are the i) state duty to protect against human rights violations, ii) corporate responsibility to respect human rights and iii) access to remedy for right-holders in cases of corporate human rights violations.

In the LG polymer case, access to remedies needs to be provided urgently. The foundational principle of the remedy pillar in the Guiding Principles puts the primary responsibility on governments to provide remedies to those affected by corporate human rights abuses. But the Guiding Principles also include the possibility of non-judicial remedies for victims.

One such non-judicial mechanism which is provided by the Guiding Principles is the setting up of operational-level grievance mechanisms (OGMs). OGMs are private remedial mechanisms which are administered by business enterprises. As per commentary on Principle 29, the function of OGMs is to provide early identification and remediation of problems which, if unattended, might escalate to major human rights issues.

OGMs have been used in previous cases where companies have faced severe human rights allegations. For example, OGMs were used by Barrick Gold in Papua New Guinea where the mine security was accused of committing sexual assault in their gold mines. Barrick had to set up an OGM to redress the grievances. In the LG Polymer case, OGMs can also act as way to provide remedies to those impacted so that further rights violations are dealt with.

 

Development of the National Action Plan

In light of these international developments, the Ministry of Corporate Affairs of India had released a Zero Draft of the National Action Plan (NAP) on Business and Human Rights in 2018. According to the Ministry, “a country’s NAP is expected to demonstrate how these principles are already being implemented, what the gaps are, and how they shall be addressed.” Indeed, the Zero Draft restates existing laws but fails to provide a future vision with the Guiding Principles at its core.

There is one missing factor in the Zero Draft. The remedy section does not mention businesses establishing grievance mechanisms. This contrasts with the Guiding Principles. Principle 29 of the Guiding Principles states that, “[t]o make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.” Since the NAP is still in the drafting stages, it is important for the government to realize the need to enable businesses to set up grievance mechanisms. The need for collaboration seems even more compelling due to the spread of COVID-19.

Developing an NAP is the first step towards accountability. There is much work which needs to be done to develop the remedy pillar. It is unclear at this stage whether there are any grievance mechanisms established, details of possible remediation plans and any possible accountability for the loss of life for the effected community in Visakhapatnam. These questions remain unanswered. The LG Polymer gas leak makes a good case for broadening the existing NAP by introducing provision for grievance mechanisms for businesses.

Conclusion

Considering the slow justice system in India, traditional remedies such as going to the courts might not adequately provide immediate relief at this stage to those impacted by the gas. The Guiding Principles provide OGMs as one of the possible non-judicial solutions. The lack of mention of grievance mechanisms in the Zero Draft is unfortunate and a significant gap. Hopefully, this will be remedied as the final draft is processed.

Corporate accountability is a multifaceted process with remediation being one part of it. It is vital that we learn from the LG Polymer case and incorporate human rights at the heart of business operations. With the recent temporary roll back of labour laws in some states across India, the business and human rights agenda has also been pushed back several steps.  More than ever, it is now equally important to realize that both governments and businesses need to collaborate to provide immediate relief on lines of the globally-recognized Guiding Principles.

 

Postscript: Baskut Tuncak, Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, has released a statement asking the chemical industry in India to step up on human rights to prevent more Bhopal-like disasters. This statement has been endorsed by the Working Group on the issue of human rights and transnational corporations and other business enterprises, the Special Rapporteur on human rights and environment and by the Special Rapporteur on the right to physical and mental health. 

LG Polymer, as a petitioner, recently questioned the setting up of multiple panels including one by the High Court, central government, and the National Human Rights Commission into the matter in the Supreme Court of India. The Court refused to intervene with the NGT’s order.  The Andhra Pradesh High Court has issued directions including seizure of LG Polymers company premises and the Directors are barred from leaving India without Court leave.

 

Justin Jos is a PhD Candidate at University of New South Wales working on business and human rights.