Dow at the Games

VICTIMS OF THE 1984 Bhopal gas tragedy posing as dead people at a protest against Dow's sponsorship of the London Olympics, outside the Sports Ministry in New Delhi on February 27.-SAURABH DAS/AP

Having Dow Chemical Company as a sponsor of the London Olympic Games is incompatible with the principles of the Olympic Charter.

BY inducting Dow Chemical Company, United States, as a partner in the Olympic Movement, the International Olympics Committee (IOC) and the London Organising Committee of the Olympic Games and Paralympic Games (LOCOG) have stirred up a controversy. In his reply dated February 2 to the letters dated December 18, 2011, and January 27, 2012, of V.K. Malhotra, Acting President of the Indian Olympics Association (IOA), Jacques Rogge, President of the IOC, said: The IOC and LOCOG were aware of the Bhopal Gas Tragedy when discussing the partnership with Dow. Dow had no connection with the Bhopal tragedy. Dow did not have any ownership stake in the Union Carbide until 16 years after the accident and 12 years after the $470 million compensation agreement was approved by the Indian Supreme Court. The court has upheld this settlement twice since then, in 1991 and 2007. We understand that this is being reviewed yet a third time by the Indian Supreme Court and we are aware of Dow's position in this matter and of the sensitivities of all parties (letter of the IOA Acting President dated February 16: www.olympic.ind.in /images/2012[1].02.16%20-%20reg%20Dow%20 Chemical.pdf).

The IOC and the LOCOG appear to have chosen to believe the half-truths and misinformation that Dow has fed them in this regard. The facts of the case are as follows:

(a) It is indeed true that initially Dow did not have any connection with the Bhopal tragedy, and it is nobody's contention that Dow had any connection with Union Carbide Corporation (UCC) at the time of the tragedy, December 2/3, 1984.

(b) The Bhopal gas victims (through the Bhopal Gas Peedith Mahila Udyog Sanghathan (BGPMUS) and the Bhopal Gas Peedith Sangharsh Sahayog Samiti (BGPSSS) and others) challenged the unjust Bhopal settlement of February 14/15, 1989, by filing review and writ petitions before the Supreme Court of India in March 1989. As a result, the criminal cases against UCC and all the other accused in the case, which were quashed under the terms of the settlement, were revived vide the judgment dated October 3, 1991. The judgment held that the quashing of the criminal proceedings was not justified. The criminal proceedings are, accordingly, directed to be proceeded with (Clause (iii), paragraph 214, (1991) 4 SCC 584).

(c) In the same judgment, the court had further directed that if the settlement fund is found to be insufficient, the deficiency is to be made good by the Union of India as indicated in paragraph 198 (Clause (viii), paragraph 214, (1991) 4 SCC 584). Thereby, the onus of meeting the civil liabilities of a crime committed by UCC was shifted on to the Union of India. This direction was later challenged by the Union of India through a curative petition (civil), Nos. 345-347 of 2010, which was filed before the Supreme Court on December 3, 2010. This petition was filed because the number of dead and seriously injured was higher than what had been assumed at the time of the settlement and because the onus of paying additional compensation was on UCC/Dow and not on the Union of India. The curative petition is currently pending before the Supreme Court.

(d) It may also be assumed, as Dow contends, that Dow did not have any ownership stake in Union Carbide until 16 years after the accident and 12 years after the $470 million compensation agreement was approved by the Indian Supreme Court. However, the truth is that much before Dow had decided to buy UCC, Dow must have been aware of the following:

(i) That criminal proceedings against UCC were revived vide a judgment of the Supreme Court dated October 3, 1991, in civil appeals, Nos. 3187-3188 of 1988;

(ii) That, after Warren Anderson (accused No. 1), the then chairman of UCC; UCC (accused No. 10); and Union Carbide (Eastern), Hong Kong, or UCE (accused No. 11), had failed to appear in the criminal case (R.T. No.2792 of 1987), the Chief Judicial Magistrate (CJM), Bhopal, had on December 7, 1991, issued a proclamation ordering the three accused to be present before the court on February 1, 1992;

(iii) That this proclamation was published in The Washington Post on January 1, 1992;

(iv) That the CJM vide an order dated February 1, 1992, had proclaimed accused Nos. 1, 10 and 11 as absconders in the criminal case;

(v) That this proclamation and the order that UCC's authorised representative be present in court on March 27, 1992, was published in The Washington Post on February 21, 1992;

(vi) That on March 27, 1992, the CJM issued a non-bailable arrest warrant against accused No. 1 and ordered the Union of India to seek extradition of Anderson from the U.S. Acceding to the request of Union Carbide India Limited (UCIL), the CJM postponed the attachment of UCC's properties in India until the next hearing;

(vii) That on April 29, 1992, the CJM attached the properties of UCC in India for non-appearance in the criminal case in response to the applications filed by the Central Bureau of Investigation, the BGPMUS, the BGPSSS and the Bhopal Group for Information and Action (BGIA);

(viii) That the criminal case against accused Nos. 1, 10 and 11 is currently pending as Miscellaneous Judicial Case (MJC) No. 91 of 1992 before the court of the CJM, Bhopal, since the accused are continuing to abscond from the court.

In other words, at the time when Dow bought UCC (UCC became a wholly owned subsidiary of Dow on February 6, 2001), Dow should have been aware that UCC was a proclaimed offender and a fugitive absconding from justice. By buying UCC, Dow not only bought UCC's assets but also its liabilities as a company's liabilities cannot be wished away while buying the assets. Thus, by acquiring UCC (a fugitive company), Dow became a fugitive company in the eyes of the law.

Therefore, there is reason to believe that Dow concealed the facts of the case from the IOC and the LOCOG. The IOC and the LOCOG, on their part, do not seem to have cross-checked the facts of the case from the IOA or the Government of India let alone from representatives of the gas victims. The IOC and the LOCOG cannot now claim that their decision to enter into a partnership with Dow was based on a fair and balanced assessment of the facts. Their decision to appoint Dow as one of the sponsors of the Olympic Games is vitiated by the fact that the decision is based on the half-truths that Dow had placed before them.

Instead of asking appropriate questions and seeking proper answers from Dow, the IOC President, in his letter dated February 2, 2012, hastily extolled the admirable qualities of Dow by claiming: Dow is a global leader in its field of business and is committed to good corporate citizenship. Earlier, on July 16, 2010, when the IOC announced the decision to admit Dow as an official Worldwide Olympic Partner, Andrew Liveris, chief executive officer of Dow, took full advantage of the situation to add on some self-praise. He said: With our long-standing commitment to global sustainability, innovation, scientific excellence and addressing world challenges, we believe Dow is perfectly matched to the vision of the Olympic Movement, which is about peace, progress and the world coming together to celebrate our common humanity (www.olympic.org/ioc? articlenewsgroup=-1&articleid=94356).

Dow's distinct contribution to global sustainability and peace and the way it has been celebrating our common humanity are evident from the fact that it supplied defoliants in the form of Agent Orange and napalm bombs to the U.S. military, which devastated the lives of many Vietnamese people and destroyed the environment there (Agent of death: www.frontlineonnet.com/fl2819/stories/20110923281905900.htm). Moreover, the apparent eagerness with which Dow acquired UCC (a company that by installing substandard safety systems and violating operating procedures caused the Bhopal disaster) and tried to absolve UCC of its culpability hardly had anything to do with upholding the cause of humanity (The Crime of Union Carbide: www.counterpunch.org/2010/09/07/the-crime-of-union-carbide/).

Under the circumstances, it is even more necessary to refer to the Olympic Charter and to examine whether the laudatory principles enshrined in it are compatible with the IOC's decision to engage Dow as a sponsor. According to the sixth Fundamental Principles of Olympism, Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement (page 11, Olympic Charter, in force from July 8, 2011,

www.olympic.org/Documents/olympic_charter_en.pdf ).

Racial discrimination

Dioxin is one of the most toxic substances known to humans. Dow's shipping of stocks of Agent Orange with a dioxin content far above the safe limit as compared to the stock of Agent Orange that was produced for consumption within the U.S. was an act of racial discrimination against Vietnam. It appears that in domestic preparations it [dioxin] is present in much lower concentrations, 0.05 ppm (parts per million), as opposed to peaks of 50 ppm in stock shipped to Vietnam. Therefore, dioxin contamination of Agent Orange was up to 1,000 times higher than in domestic herbicides (Hugh Warwick; The Ecologist; Sept-Oct 1998; page 264: www.theecologist.org/back_archive/19701999/).

Dow acquired UCC, which is guilty of practising racial discrimination against the people of India. The root cause of the Bhopal disaster was the installation of substandard safety systems and the gross violation of operating procedures at UCC's Bhopal plant. At its parent plant in West Virginia (U.S.), UCC had installed superior safety systems and followed strict operating procedures. Not only were the safety systems at UCC's Bhopal plant such as the refrigeration system and the scrubber totally under-designed in terms of the installed capacity of the methyl isocyanate (MIC) unit but even those safety systems were shut off by UCC as a cost-cutting measure well before the disaster in gross violation of the strict instructions in the operating manuals. Thereby, MIC, which is a highly toxic and reactive chemical that has to be stored and used under stringent safety conditions, was left exposed without the necessary safeguards. This literally paved the way for the disaster.

The safety systems at UCC's West Virginia plant were not only designed for total containment (in case of an accident) in terms of the installed capacity of the MIC unit but were kept in operation mode at all times. In addition, while UCC's West Virginia plant had standby safety systems as well, UCC's Bhopal plant had none. This is a classic instance of double standards in the installation and operation of safety systems by UCC in a Third World country. UCC, which thus adopted discriminatory safety policies, was subsequently bought by Dow with the full knowledge that criminal cases were pending against it. Therefore, the IOC is at fault for acting contrary to the Fundamental Principles of Olympism by associating the Olympic Movement with Dow.

In this regard, the IOC's Code of Ethics (2012) clearly states: The Olympic parties, their agents or their representatives must not be involved with firms or persons whose activity or reputation is inconsistent with the principles set out in the Olympic Charter and the present Code (IOC Code of Ethics, Section B, clause 6; page 129:

www.olympic.org/Documents/Reports/EN/Code-Ethique-2012-Version-finale.pdf).

In short, contrary to the explicit provisions in the Olympic Charter and in the IOC's Code of Ethics, the IOC took the unprecedented step of associating Dow with the Olympic Movement. The same Code of Ethics states: The Olympic parties shall see to it that the principles and rules of the Olympic Charter and the present Code are applied (ibid, section G, clause 1, page 87). Therefore, it is the responsibility of the IOC and the LOCOG to ensure that the principles and rules of the Olympic Charter and the present Code are applied.

On its part, Dow has both political and commercial objectives in wanting to be associated with the Olympic Movement. Dow's political objective was probably centred on the forlorn hope that its prestige would be enhanced if it attained recognition from the IOC as a company worthy of being associated with the Olympic Movement. Dow's commercial objective was that its association with the Olympic Games will present Dow with tremendous new business opportunities, making this partnership a powerful growth catalyst that comes at the right time in our Company's strategic transformation (www.olympic.org/ioc?articlenewsgroup=-1&articleid=94356). According to a Reuters report, Dow justified the sponsorship by forecasting an Olympic-related sales boost of $1 billion by 2020 (www.reuters.com/article/2012/02/21/dowchemical-olympics-idUSL2E8DL07M20120221).

Thus, the 7 million worth of wrap, which Dow is supposed to contribute to the 2012 London Olympics, is essentially just another form of investment for the profit that Dow hopes to reap from the Olympic Movement.

Questionable tactics

The IOC and the LOCOG have to take note of the following incidents, which prove that Dow adopts questionable tactics to further its business interests.

(a) Dow was penalised for misleading the public in a case relating to the pesticide Dursban. Eliot Spitzer, Attorney General of the State of New York at the time, said: By misleading consumers about the potential dangers associated with the use of their products, Dow's ads may have endangered human health and the environment by encouraging people to use their products without proper care. As a result, pursuant to a consent judgment signed on December 12, 2003, by Judge Joan Madden in the Manhattan Supreme Court, Dow was required to pay a $2 million penalty (reportedly the largest pesticide enforcement penalty in U.S. history to date) and was barred from making safety claims about its pesticide products (New York State Attorney General's press statement dated December 15, 2003: dursban-in-your-water.com/images/NY%20Attorneys%20PR%20dec15a_03.pdf).

(b) Dow has been penalised for resorting to outright bribery. A Time magazine report (June 28, 2008) said: Last year, Dow had to pay a $325,000 penalty to the Securities and Exchange Commission of the U.S. for bribing Indian officials to expedite licences for four pesticides produced by Dow one of which, Dursban, is banned in the U.S. (www.time.com/time/world/article /0,8599,1818555,00.html. The report titled SEC Swats Dow with Bribery Charge, www.cfo.com/article.cfm/8696902?f=related, provides more details of this case).

(c) Dow faced a charge of managing to ease out an uncompromising and conscientious official of the U.S. Environmental Protection Agency from her post as head of the EPA's Midwest office in Chicago. The EPA official, Mary Gade, had been locked in a heated dispute with Dow about long-delayed plans to clean up dioxin-saturated soil and sediment that extends 50 miles beyond its Midland, Mich., plant into Saginaw Bay and Lake Huron. The company dumped the highly toxic and persistent chemical into local rivers for most of the last century (EPA official ousted while fighting Dow; Chicago Tribune; May 2, 2008: www.chicagotribune.com/health/chi-epa-official_02may02,0,6326158,full.story).

There were reports that Dow was involved in conducting secret chemical warfare experiments on human subjects just before the use of Agent Orange in Vietnam: In 1965 the U.S. Army and the Dow Chemical Company injected dioxin into 70 prisoners (most of them black) at the Holmesburg State Prison in Pennsylvania. The prisoners developed severe lesions which went untreated for seven months (www.counterpunch.org/1999/06/15/germ-war-the-us-record/. Allen M. Hornblum's book titled Acres of Skin: Human Experiments at Holmesburg Prison: A True Story of Abuse and Exploitation in the Name of Medical Science (New York, 1998) provides a detailed account of this dark side of U.S. history. It draws a disturbing analogy between the Nazi experiments during the Second World War and those sanctioned by major private corporations, such as Dow, and the U.S. government.).

Several pertinent questions have been left unanswered. How could a company facing charges of conducting secret chemical warfare experiments on human subjects and resorting to falsehood, bribery and intimidation to promote its business interests ever be associated with the Olympic Movement? How did the office-bearers of the IOC and the LOCOG fail to properly verify the antecedents of Dow? How come only one member of the LOCOG, Meredith Alexander, had the conviction to take a bold and principled stand against associating Dow with the Olympic Movement?

The WikiLeaks expos on February 27, 2012, (wikileaks.org/the-gifiles.html#cmm) has ripped away the facade of Dow's claim that by acquiring UCC, Dow was neither legally nor morally responsible for the Bhopal disaster. The fact that Dow was compelled to spy on Bhopal activists is by itself proof of Dow's guilt complex about its own culpability in the matter.

This is the appropriate moment for the IOC and the LOCOG to reassess all the facts of the case and rescind the decision to admit Dow as a partner of the Olympic Movement and as one of the sponsors of the Olympic Games.

N.D. Jayaprakash is joint-secretary, Delhi Science Forum, and co-convener of the Bhopal Gas Peedith Sangharsh Sahayog Samiti, Delhi.