Seeking
accountabality of a multinational
Arsenic
victims Vs the British geological survey
Sharmeen
Murshid
With widespread
arsenic found in the groundwater in Bangladesh the people of this country
have lost their rights to safe drinking water and therefore their right
to life. The spread of this poison did not occur on one sudden day but
over a period of decades. This water was provided without quality control
and without meeting standard drinking water protocols. In fact, until
recently Bangladesh did not have a proper ground water policy of its
own nor it did follow any of the existing international policies or
protocols prevalent in other countries. The arsenic crisis in Bangladesh
is a classical example of negligence and distorted development policies.
State
liability under constitutional law
Under the Bangladeshi Constitution, every citizen is entitled to the
fundamental right to life. Therefore, drinking poisoned water that damages
the body until the quality of life is negligible, or until the person
dies, does not fulfill the right to life as envisaged by the constitution.
Simply put, the right to life becomes fictional without access to safe
drinking water. Article 18 emphasizes the responsibility upon Govt.
for ensuring public health. Bangladesh has also ratified the United
Nations Convention on the Rights of the Child that obligates its signatories
to ensure the health of each child by combating 'disease and malnutrition.
The Bangladeshi government therefore has a constitutional and international
legal obligation to ensure that all its citizens have access to safe
drinking water.
State
liability under environmental law
There is a substantial body of environmental law that regulates state
activity in relation to the provision of safe drinking water. To date,
a writ application has been applied for to prevent the government and
its agencies from installing further tube wells around the country in
adherence to various environmental laws, of which the most relevant
are discussed below. The Petitioners of this writ are awaiting a court
hearing wherein for arguing as to the liability of the Ministry of Health
and Family Welfare (MOHFW) and the Ministry of Local Government, Rural
Development and Co-operatives.
The MOHFW and MOLGRD
are responsible via their departments for matters relating to public
health and, standardization of and quality control of water. The Pouroshova
Ordinance 1977 gives a pouroshova the responsibility of providing water,
and promoting the public health (Sub-section 70, 73 and 74). This certainly
has interesting ramifications for claims in negligence by arsenicosis
patients, as per the section below.
The first schedule
of the Local Government (Union Porishod) Ordinance 1983 prohibits tube
wells that are dangerous (clause 18), and charges the state with the
positive duty of ensuring that this is done.
The Groundwater
Management Ordinance 1985 requires local authorities to grant licenses
before tube wells can be sunk. It is almost certain that very few, if
any, Upazillas comply with this legislation.
Culpability
and accountability: legal campaigns
The involvement of government, non-government and multinational agencies
has had a significant role in this problem, unwittingly or otherwise.
The position of the petitioner has always been that the water providing
agencies must be accountable for their actions in failing to monitor
the water quality of groundwater where they have responsibility for
having installed tube wells. International law is in accord with this
sentiment: the polluter must pay.
To date, three separate
actions have been taken as an attempt to begin to redress some aspects
of this problem through the law courts.
Advocate Rabia Bhuiyan
applied to the High Court for a writ to declare that the government
show cause as to why they should not halt the installation of shallow
and deep tube wells all over the country when they were fully cognizant
of the problem of arsenic contaminated groundwater. Her suit was dismissed
on the grounds that she had been unable, on that occasion, to show any
provisions of law that compelled the government to satisfy her demand.
Following this action,
Brotee instructed a barrister to make a similar application to the High
Court, with the relevant provisions of law. This application was successful
and the High Court declared in July 2001 that the government should
show cause as to why it should not immediately halt their tube well
installation programme. The Petitioners are currently awaiting a hearing
date before the Supreme Court.
The third case,
which is the main concern of this paper, is a public litigation against
a multinational called the British Geological Survey (BGS). Brotee,
in conjunction with the Bangladesh International Action Network (BIAN)
has instructed Alexander Harris, an English law firm, to represent two
arsenicosis patients in a claim for damages against the British government
department in charge of the British Geological Survey (BGS). BGS conducted
a survey of the groundwater in Bangladesh in 1992 but did not test for
arsenic. Alexander Harris together with Leigh Day and co., two British
firms have jointly undertaken the case against the BGS on behalf of
the arsenic victims in the English High Court.
The
accountability of a multinational:
Taking the BGS to the British Court
The historical basis of the claim: In 1970, the Government undertook
a programme of tube well drilling in order to provide an alternative
source of drinking water in Bangladesh. The BGS began working in Bangladesh
in 1983 to help install deep tube wells. The BGS then became involved
in a separate study, the objectives of which included, "Produce
maps of ground water environments and indicate possible conditions where
trace elements studied may interact with other factors to produce factors
toxic to elements of the biological environments including man".
The Claimant's case:
The Petitioner alleged that the work carried out by the BGS in compiling
their 1992 Report was conducted carelessly as insufficient tests were
carried out to assess the water supply for its fitness for human consumption.
It argued that the report itself was written in a way, which leave the
reader to assume that the water was fit for human consumption. The water
in Bangladesh contained arsenic and as arsenic was not tested for, it
remained unidentified and the Claimants have suffered injury as a result
of drinking water.
The Claimants also
argued that the Defendants knew that arsenic is present in drinking
water, is dangerous to humans and indeed they tested for arsenic in
Britain in 1989. Moreover, the BGS would have known, or should have
known, that there was a possibility that arsenic would be presented
in the drinking water in Bangladesh as it had been identified in parts
of India before 1992. It also argued that BGS knew the survey was intended
to be for the use and benefit of the Bangladeshi Government and the
agencies involved in the management of the country's water resources.
The claimants case
is that the Defendants (BGS) aught to have tested the fitness for human
consumption of the water supply when undertaking the survey upon which
the 1992 BGS Report was based and it also aught to have made it clear
to any reader that it could not be relied on for that purpose.
The obligations
and duty of care of the defendants arises from the following facts:
*The Defendants was paid by the UK Overseas Development Agency from
development aid funds to conduct a hydro chemical baseline survey of
the ground water quality to include an assessment of its toxicity to
humans.
*The report was intended by the ODA and Defendant to be for the use
and benefit of the Bangladeshi Government and agencies involved in the
management of Bangladeshi water resources
*The Defendant is recognized as a world leaser in hydro chemical and
hydro geological testing and its results are widely relied upon by government
agencies, NGOs and other experts. As intended it was widely distributed
to interested parties in 1992.
*The possibility of arsenic being present in the groundwater should
have been known to a reasonably competent hydro geologist in the position
of those employed by the Defendants and should have been included as
an element to be tested for.
*The Defendants published a report that gave the impression that, so
far as the presence of potentially toxic trace elements were concerned,
there were no significant health hazards for humans in drinking the
ground water that had been teste.
The Defendant argued
that this is a novel type of claim as there has never been a case before
in which a party who has undertaken scientific study for a client has
been held responsible to a third party who may have sustained injuries
as a result of the study not being undertaken or reported in a particular
way. They had no responsibility for the provision of water to the Claimant
or to certify the safety of the water and they had no obligation to
advise those who had those responsibilities. They also argued that BGS
was not responsible for the presence of arsenic in the water and had
no responsibility for removing it. The Claimants and the Defendant were
never in direct contact with each other and they were not even aware
of each other's existence. They argued therefore that legally there
were no ties between the Claimant and Defendant.
After hearing, the
Judge considered the arguments put forward by both sides for around
4 weeks before giving his Judgement. He concluded that this was a case
that should progress to full trial. This was no small victory. It at
least meant that so far the Defendants failed in their attempt to prevent
us from taking the case to full trial.
The Defendants next
applied to the Court for leave to appeal this decision. The trial judge
refused them leave. After that the Court of Appeal with Lord Justice
Kennedy arrived at a split decision, that BGS was neither responsible
for the hazard nor for providing potable water. It also had no control
over who saw the report or how it was used.
While this is a
disappointing decision the legal team feels that this as 'losing the
battle but not the war'.
The case is now
pending before the House of Lords - the highest court in Britain. The
Law Lords adjudicate only on points of law. The Claimants are now seeking
leave for appeal to the House of Lords. This case presents a novel point
of law on the duty of care. The Court of Appeal held that the BGS owed
no duty of care to our clients because there was no "proximity".
It is a point that has not been looked at before and so cannot be decided
by similar precedent cases because there aren't any. If there are no
precedent cases or there is no common law on the point- and the Law
Lords therefore need to decide what the law is to be. This is the first
case where a claim raises issues of direct versus indirect injury; personal
injury versus economic loss and the nature of the duty owed in aid projects
to the developing world.
The
writer is a sociologist ,CEO, Brotee.
