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Dow Chemical and the Olympic Movement

by N. D. JAYAPRAKASH

Despite Dow’s chequered history, an unwarranted controversy was created by the IOC and the LOCOG by inducting Dow as a partner of the Olympic Movement. For maintaining the spirit of the Olympic Movement and for upholding the sanctity of the Olympic Charter and the Code of Ethics, it is high time that the IOC and the LOCOG rescinded that decision.  

In his reply dated 02.02.2012 to the letters of the Acting President of the Indian Olympics Association (IOA), Prof.V.K.Malhotra, dated 27.01.2012 and 18.12.2011, the President of the International Olympics Committee (IOC), Mr.Jacquos Rogge, had said as follows:

“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.” [1]

It is obvious that the IOC and the LOCOG (London Organizing Committee of the Olympic Games and Paralympic Games) have merely chosen to believe the half-truths and misinformation that the Dow Chemical Company, USA, has fed them in this regard. On the contrary, the facts of the case are actually 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 such connection with Union Carbide Corporation (UCC) at the time of the tragedy on 02/03.12.1984.

(b)  The Bhopal gas-victims [through BGPMUS & BGPSSS** and others] had challenged the unjust Bhopal Settlement of 14/15.02.1989 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 said Settlement, were revived vide Judgment dated 03.10.1991. The said Judgment has “held that the quashing of the criminal proceedings was not justified. The criminal proceedings are accordingly, directed to be proceeded with.” [2]

(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”. [3] Thereby, the onus of responsibility for 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 of India on 03.12.2010. The basis for filing the said Curative Petition was that the number of dead and seriously injured is higher than what was assumed at the time of the Settlement and that the onus of paying additional compensation is that of UCC/Dow and not of the Union of India. The said Curative Petition is currently pending before the Supreme Court. A Special Leave Petition (SLP No.12893 of 2010), which was filed by members of BGPMUS and BGPSSS on 17.03.2010 for seeking enhancement of compensation in the terms of the magnitude and the gravity of the injuries suffered by the gas-victims, is also pending before the Supreme Court.

(d)  That, it may also be assumed, as Dow contends, that “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”.  However, much before Dow had decided to own UCC, the truth was that Dow was well aware of the following:

(i)  That criminal proceedings against UCC had been revived vide Judgment of the Supreme Court of India dated 03.10.1991 in Civil Appeals Nos.3187-3188 of 1988;

(ii)  That, after the then Chairman of UCC, Warren Anderson (accused No.1); UCC (accused No.10); and UCE, Hong Kong (accused No.11) had failed to appear in the criminal case (R.T.No.2792 of 1987), the Chief Judicial Magistrate (CJM), Bhopal, on 07.12.1991 had issued a proclamation ordering accused Nos.1, 10, and 11 to be present before the Court on 01.02.1992;

(iii)  That the said proclamation that was issued by the CJM, Bhopal, on 07.12.1991 ordering accused No.1 to be present before the Court on 01.02.1992 was published in The Washington Post on 01.01.1992;

(iv)  That the CJM, Bhopal, vide Order dated 01.02.1992 had proclaimed accused Nos.1, 10 and 11 (i.e., Warren Anderson, UCC and UCE) as absconders for non-appearance in the criminal case;

(v)   That the proclamation of the CJM, Bhopal, dated 01.02.1992 declaring UCC (USA) as absconder and ordering UCC’s authorized representative to be present in Court on 27.03.1992 was published in The Washington Post on 21.02.1992;

 

(vi)                That on 27.03.1992, the CJM, Bhopal, issued non-bailable warrant of arrest against accused No.1 and ordered the Government of India to seek extradition of Anderson from the U.S. Acceding to the request of Union Carbide India Limited (UCIL), the CJM postponed attachment of UCC’s properties in India till the next hearing.

(vii)  That on 29.04.1992, the CJM, Bhopal, attached the properties of UCC in India for non-appearance in the said criminal case in response to the applications filed by the CBI (Central Bureau of Investigation), BGPMUS, BGPSSS and BGIA (Bhopal Group for Information and Action).

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

In other words, at the time when Dow bought UCC and UCC became a wholly owned subsidiary of Dow on 06.02.2001, Dow was very well aware that UCC was a proclaimed offender and a fugitive, which was absconding from justice and from the Court of the CJM, Bhopal. By buying UCC, Dow had bought not only the assets of UCC but also the liabilities of UCC as well since liabilities of a company cannot be wished away while buying the assets. Thus, the plain truth is that, by acquiring UCC (a fugitive company), Dow has itself become a fugitive company in the eyes of the law.

Therefore, it is amply evident that Dow had consciously concealed the facts of the case from the IOC and the LOCOG. The IOC and LOCOG, on their part, never bothered to cross-check 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 of the case. The decision of the IOC and the LOCOG to appoint Dow as one of the sponsors of the Olympic Games is wholly vitiated by the fact that the said decision is entirely based on the half-truths that Dow had placed before the IOC and the LOCOG.

The crucial questions, which the IOC and the LOCOG have chosen to leave unanswered in this regard, are as follows: (a) Is UCC a proclaimed offender and a fugitive from justice since 01.02.1992? (b) When the assets of a company are bought by another company, what happens to the liabilities? (c) Can liabilities be made to disappear through the process of merger? (d) Since liabilities of a company cannot be divorced from its assets, is it not a fact that Dow is shouldered with the assets as well as the liabilities of UCC? Since the fugitive company, UCC, has merged with Dow, would not Dow too become a fugitive company in the eyes of the law?

Instead of asking and answering the above questions, the IOC President, Jacques Rogge, in the said letter dated 02.02.2012 had hastily gone on to extol the “admirable” qualities of Dow by claiming that: “Dow is a global leader in its field of business and is committed to good corporate citizenship.”[1] Earlier,on 16.07.2010, at the time of announcing the decision to admit Dow as “an official Worldwide Olympic Partner”, the IOC President did not miss the opportunity to shower praise on Dow. He said: 

“We are delighted to welcome Dow to the TOP Programme. As a global leader in the chemical industry and an innovator in sustainability, Dow will not only provide critical financial support to the Olympic Movement, but also bring industry-leading expertise and innovation to the Games themselves.” [4]

The Dow Chemical Company Chairman and CEO Andrew Liveris also 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.” [5]

Dow’s distinct contribution to “global sustainability” and “peace” and the way it has been celebrating “our common humanity” is evident from the manner in which Dow – by supplying defoliants in the form of “Agent Orange” and napalm bombs to the U.S. military – had connived to devastating the lives of the Vietnamese people and in destroying the environment there. [6] Moreover, the eagerness with which Dow had acquired UCC (a company, which by installing sub-standard safety systems and by violating operating procedures, had caused the Bhopal disaster) with a view to also absolve UCC of its culpability was hardly the most appropriate way to uphold the cause of “humanity”. [7]

8.         Under the circumstances, it is even more necessary to refer to the Olympic Charter and to examine whether the laudatory principles enshrined in the Olympic Charter are compatible with the decision of the IOC to engage Dow as one of the sponsors of the Olympic Games. According to the 6th‘Fundamental Principle of Olympism’ as enshrined in the Olympic Charter:

“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.” [8]

Considering that “dioxin” was one of the most toxic substance known to humans, Dow was clearly guilty of practicing racial discrimination against Vietnam by shipping to Vietnam stocks of “Agent Orange” with dioxin content far above the “safe” limit as compared to the stock of “Agent Orange” that was produced for consumption within the United States. 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” [9]

Similarly, Dow is guilty of condoning acts of racial discrimination by acquiring UCC, which is guilty of practicing racial discrimination against the people of India. The root cause of the Bhopal disaster was the installation of sub-standard safety systems and gross violation of operating procedures at UCC’s Bhopal plant; whereas, at its parent plant in West Virginia (USA), UCC had installed superior safety systems and had followed strict operating procedures there. 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 also 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 and which had to be stored and used under stringent safety conditions, was left exposed without the necessary safeguards that literally paved the way for the disaster. On the other hand, the safety systems at UCC’s West Virginia plant not only were designed for “total containment” (in case of an accident) in terms of the installed capacity of the MIC unit but the safety systems there 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 instance is a classic case of adoption of double standards in installation and operation of safety systems by UCC in a Third World country. UCC, which had consciously adopted discriminatory safety policies, was subsequently bought by Dow with the full knowledge that criminal cases were pending against UCC for causing the Bhopal disaster. Therefore, the IOC is completely at fault for acting contrary to the said ‘Fundamental Principles of Olympism’ by associating the Olympic Movement with a company, which is guilty of practicing and condoning racial discrimination against the people of Vietnam and India.

In this regard, the IOC’s Code of Ethics [2012] has very clearly stated that: “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.” [10] In short, wholly contrary to the explicit provisions in the Olympic Charter and in the IOC’s Code of Ethics, the IOC has taken the unprecedented step of associating Dow, i.e., a firm “whose activity or reputation is inconsistent with the principles set out in the Olympic Charter and the present Code”, with the Olympic Movement. Furthermore, the same Code of Ethics has stated that: “The Olympic parties shall see to it that the principles and rules of the Olympic Charter and the present Code are applied.” [11] Therefore, in terms of the said explicit provisions in the Olympic Charter and in the Code of Ethics, 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 as well as commercial objectives in wanting to be associated with the Olympic Movement. Dow’s political objective was centered in its forlorn hope that as a partner of the Olympic Movement its ill-reputation would get camouflaged and that its prestige would be enhanced by attaining recognition from the IOC as a company worthy of being associated with the Olympic Movement. Dow’s commercial objective was that it’s“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.” [12] In fact, according to a Reuters report, “Dow justified the sponsorship by forecasting an Olympic-related sales boost of $1 billion by 2020.” [13] 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 in the future.

Dow’s unsavory reputation in conducting its business is also an important factor that the IOC and the LOCOG have to take due note of. The following three incidents are prime examples of the questionable tactics which Dow has adopted to further its business interests.

(a) Dow has had no qualms in indulging in false propaganda for which it was even penalized for misleading the public.  The case relating to pesticide ‘Dursban’ is an example. According to Attorney General Eliot Spitzer of the New York State: “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 12.12.2003 by Judge Joan Madden in Manhattan Supreme Court, Dow was required to pay a $2 million penalty (reportedly the largest pesticide enforcement penalty in U.S. history till date) and was barred from making safety claims about its pesticide products. [14]

(b) When false propaganda was not enough to serve its purpose, Dow had little problem in resorting to outright bribery as the next option. According to a report in Time magazine (28.06.2008): “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 licenses for four pesticides produced by Dow — one of which, Dursban, is banned in the U.S.” [15] 

(c) When Dow is unable to bribe its way through, it readily uses its political clout to serve the same purpose. The brazen manner in which Dow contrived to ease out an uncompromising and conscientious official of the U.S. Environmental Protection Agency (EPA) from her post as head of EPA’s Midwest Office in Chicago is a case in point. The said 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.” [16]

Moreover, Dow was involved in conducting secret chemical-warfare experiments on human subjects just prior to the use of “Agent Orange” in Vietnam. Reports have confirmed that: “In 1965 the US 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.” [17]

Therefore, there are several pertinent questions, which have been left unanswered. How could a company, which has no scruples in conducting secret chemical experiment on human subjects and in resorting to falsehood, bribery and intimidation to promote its business interests, be ever associated with the Olympic movement contrary to the laudatory percepts enshrined in the Olympic Charter?  How is it that the concerned office-bearers of the IOC and the LOCOG have failed to properly verify the antecedents of Dow before deciding to associate Dow with the Olympic Movement? How come that at least one member of the LOCOG, Meredith Alexander, had the conviction to take a bold and principled stand against associating Dow with the Olympic Movement while other members have remained indifferent to the entire issue or have chosen to believe the misinformation provided by Dow?

Despite Dow’s unenviable record of unethical conduct, the IOC was quick to endorse Dow’s farfetched claim that “Dow combines the power of science and technology with the “Human Element” to passionately innovate what is essential to human progress.” [18] It is matter of grave concern that the IOC had easily fallen prey to Dow’s cleverly crafted multi-million PR ad campaign about Dow’s concern for the ‘Human Element’ and hence had failed to see-through the mask, which Dow had donned to mislead the world at large, the reality about its true character. However, not everyone gets easily misled. Artist Paul Phare, through a series of artworks, has graphically responded to Dow’s contrived ad campaign and has effectively laid bare the truth, which Dow was so desperate to conceal. Paul Phare’s pertinent remarks, which he uses to explain his artworks, drive home the point in no uncertain terms. According to Paul Phare:

“Dow’s ‘Human Element’ ad campaign uses stunning photography and film to portray itself as a caring and benevolent company, but behind the beautiful mask is a world of horror, suffering and pain…. It wants you to believe it is a good company, doing its best for humanity, but if people could look behind the mask, they could see the mangled bodies of babies destroyed by the lifeless chemicals Dow combined to make poisons like dioxin…. Dow’s ‘human element’ projects a glowing image of its contribution to humanity, but the tissue samples of the victims around the world tell a different story – its cancer cells that glow behind the mask of science…. No matter how many million dollars Dow spends on the masks of the ‘human element’, it will never be able to buy the humanity it so spectacularly lacks.” [19]

Dow is using the arena of the Olympic Movement for political purposes by attempting to project its image as a responsible company and, in the process, to cock a snook at its victims across the world. In addition, in the long run, Dow is hopeful of reaping large commercial benefits through its association with the Olympic Movement as already explained above. Dow’s motives are completely contrary to the provisions in the Olympic Charter where it is explicitly stated that among the ‘Mission and Role of the IOC’ was “to oppose any political or commercial abuse of sport and athletes”. [20]

However, contrary to the said ‘Mission and Role of the IOC’ as stipulated in the Olympic Charter, it appears that the IOC, by its indifference and insensitivity in the matter, is facilitating and encouraging firms like Dow to subject the Olympic Movement and the Olympic Games to “political or commercial abuse”. It is highly improper on the part of the IOC and the LOCOG to have reposed blind faith in Dow, whose forte lies in its ability and means to wage a concerted disinformation campaign. This is especially so regarding Dow’s relationship with UCC. Although Dow has never claimed ownership over UCC’s liabilities in India, and has insisted that the latter is a separate legal entity, the facts are otherwise. In this regard, a report in the Times of India, one of the major national dailies in India, states as follows:

TOI has accessed internal documents – emails, correspondence and memos etc – of Dow showing how the chemical giant decided to label UCC products and sell them in its name to evade taint and prosecution. The documents show Dow continued to set the prices for UCC products in India, though it now claims UCC is a separate entity and it has no responsibility for the firm’s liabilities for the 1984 Bhopal gas tragedy. Dow sold goods worth $24 million of UCC products in 1999 through one company alone. The correspondence indicates that there was a concerted and conscious attempt to create a firewall between Dow and UCC in public domain, and rebrand UCC as Dow’s.” [21]

The subsequent Wikileaks exposé on 27.02.2012 [22] has completely ripped the facade of Dow’s specious 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 the Bhopal activists is by itself ample proof of the guilt-complex of Dow about its own culpability in the matter because of acquiring UCC. Under the circumstances, it 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. Unless this is done expeditiously, the Olympic Games will turn into an arena for dubious companies to play their political and commercial games and the entire Olympics Movement will fall into disrepute. It is the duty and responsibility of the IOC and the LOCOG to uphold the laudatory principles enshrined in the Olympic Charter and to strictly implement the Code of Ethics. It is hoped that the IOC and the LOCOG will not be found wanting in this regard.

N. D. Jayaprakash is Joint-Secretary, Delhi Science Forum, and Co-Convener, BGPSSS.      E-mail: jaypdsf@gmail.com        

** BGPMUS (Bhopal Gas Peedith Mahila Udyog Sanghathan – an organization of Bhopal gas-victims for seeking justice)

& BGPSSS (Bhopal Gas Peedith Sangharsh Sahayog Samiti – a coalition of all India and Delhi-based organizations for supporting the struggle of the gas-victims for justice).

REFERENCES:                                

[1]       See: Letter of President of the IOC dated 02.02.2012 at http://www.olympic.ind.in/images/2012[1].02.16%20-%20reg%20Dow%20Chemical.pdf

[2] Clause (iii), para 214, (1991) 4 SCC (Supreme Court Cases) 584

[3] Clause (viii), para 214, (1991) 4 SCC 584

[4]See: http://www.olympic.org/ioc?articlenewsgroup=-1&articleid=94356

[5] Ibid.

[6] See article titled “Chemical Warfare at its Worst” at:

http://www.counterpunch.org/2011/09/09/chemical-warfare-at-its-worst/

[7] See article titled “The Crime of Union Carbide” at: http://www.counterpunch.org/2010/09/07/the-crime-of-union-carbide/

[8] Page 11, Olympic Charter (in force from 08.07.2011) at:

http://www.olympic.org/Documents/olympic_charter_en.pdf

[9] See: Hugh Warwick, “The Ecologist”, Sept-Oct 1998, page 264, at http://www.theecologist.org/back_archive/19701999/

[10] See: IOC Code of Ethics, Section – B, clause 6, p. 129, at

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

[11] Ibid., section – G, clause 1, p. 87

[12] See: http://www.olympic.org/ioc?articlenewsgroup=-1&articleid=94356

[13] See: http://www.reuters.com/article/2012/02/21/dowchemical-olympics-idUSL2E8DL07M20120221

[14] See: New York State Attorney General’s press statement dated 15.12.2003 at http://dursban-in-your-water.com/images/NY%20Attorneys%20PR%20dec15a_03.pdf

[15]See: http://www.time.com/time/world/article/0,8599,1818555,00.html. [The report titled “SEC Swats Dow with Bribery Charge” athttp://www.cfo.com/article.cfm/8696902?f=related provides more details of this case.]

[16] See article titled “EPA official ousted while fighting Dow”, ‘Chicago Tribune’ dated 02.05.2008 at: http://www.chicagotribune.com/health/chi-epa-official_02may02,0,6326158,full.story

[17] See:

http://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 World War II and those sanctioned by major private corporations like Dow and the U.S. Government.]

[18] See:

http://www.olympic.org/ioc?articlenewsgroup=-1&articleid=94356

[19] See: http://indrasinha.com/2011/02/09/a-glimpse-behind-the-masks-of-dow/]

[20] See: Olympic Charter, Chapter 1, Section 2, Clause 10, p.15 at: http://www.olympic.org/Documents/olympic_charter_en.pdf]

[21] See: http://articles.timesofindia.indiatimes.com/2012-01-29/india/30675295_1_dow-chemical-international-pvt-dow-business-ucc

[22] See: http://wikileaks.org/the-gifiles.html#cmm

N.D. Jayaprakash is Joint Secretary, Delhi Science Forum and Co-Convenor, Bhopal Gas Peedith Sangharsh Sahayog Samiti (Coalition for supporting the Cause of the Bhopal Gas Victims).

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