[back] Pesticides [back] Pesticide attack [back] Nicaragua Barren Justice ,May 13th, 2004 http://www.corpwatch.org/article.php?id=11330 |
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Francisco Gonzáles believes he lost his chance
to be a father because of the pesticide DBCP. "I can't have children,"
says Gonzáles who began working in the banana plantations of Gonzáles said that he was exposed to DBCP, the
key chemical in the pesticides Nemagon and Fumazone, while he worked as
a sprayer. "We first sprayed water and, later at night, we sprayed the
pesticide over the entire plantation, spraying poison all night long.
This poison stayed on the leaves and the other people who worked during
the day were also affected by it." Gonzáles is one of tens of thousands of
plantation workers in The results from these lawsuits, which add up
to more than $11 billion in claimed damages, have so far been
disappointing for the workers, and the legal process they have gone
through demonstrates the obstacles workers in developing countries face
when they attempt to win damages from transnational companies. While
some DBCP cases were settled out of court, the awards workers received
were relatively small, and many other lawsuits have been stymied by
legal and political barriers and may be impeded in the future by free
trade agreements. Known danger Starting in the 1960s, U.S. chemical companies exported DBCP to the Central American banana plantations of Standard Fruit and other food growers, which used the fumigant to combat a worm that afflicts the roots of the plants and mottles the appearance of the fruit bound for supermarket bins in the United States.
In addition to controlling pests, however, the
fumigant also had toxic effects on animals--something the manufacturers
of DBCP have known for decades. In the mid-1950s, Shell and Dow
conducted animal studies that found that exposure to DBCP led to
sterility, as well as liver, kidney, and lung damage. However, the
companies did not limit production of DBCP but chose to export it
worldwide. In 1977, after learning that the chemical also
caused workers at an Occidental Petroleum factory to become sterile, the
U.S. Environmental Protection Agency prohibited the use of DBCP in
California. In 1979, the EPA banned DBCP in the continental United
States. After the U.S. ban, Dow told its client Dole
Fruit that it was concerned about possible liabilities arising from
export of the chemical, and Dow threatened to halt production. According
to Dow spokesman Scot Wheeler, Dow agreed to continue to produce DBCP
and Dole agreed it would assume liability. Dole asserts, however, that
the company did not use the chemical after it was banned in the United
States. Shell also denies liability for the Nicaraguan DBCP lawsuits,
stating that the company did not export DBCP to the Central American
country. Nicaraguan workers claim that the companies not
take adequate measures to protect them from exposure to the fumigant.
"We sprayed without any protections," says José Antonio Rodríguez
Pineda, a banana worker who was employed at the San Carlos plantation in
El Viejo. "We worked in shorts because it was so muddy, without any
protection on our feet or hands." Carl Smith, project director at the Los
Angeles-based Foundation for Science and Education, which tracks the
export of banned and hazardous pesticides, says that chemicals that are
dangerous in this country are even more unsafe in the developing world.
"In these countries it's not like you work in the fields all day and
take off your work clothes and put on your smoking jacket," he says.
"You're wearing pesticide-impregnated clothing all the time." Inconvenient territory When the banana workers brought their cases
against these corporations, they faced an even more formidable
challenge: the American legal system. One of the most considerable
impediments to compensation in U.S. courts is the legal doctrine of
forum non conveniens or inconvenient forum. Under this doctrine, a case
can be rejected by a court on the grounds that it would be more
appropriate to hear it in another locale, such as the plaintiff's home
country. Forum non conveniens was used against
plaintiffs from the world's worst industrial accident in Bhopal, India,
who sought to sue the U.S. corporation Union Carbide, now owned by Dow
Chemical. The disaster killed 14,000 people and injured hundreds of
thousands. In 1986, a federal court in New York rejected the case on the
grounds that India would be a better forum for the lawsuit.
Subsequently, little has come of the case in Indian courts. Oil company
Unocal, maquiladora-operator EMOSA, Cambior mining company , and many
others have also attempted to use forum non conveniens to dismiss
lawsuits brought by foreign workers and citizens. Erika Rosenthal, who was counsel to the banana
workers in the early 1990s and is currently a legal advisor to Pesticide
Action Network, says that forum non conveniens has been used since the
1980s to close the door of U.S. courts to foreign plaintiffs injured by
American corporations. "Forum non conveniens - especially in the
globalized economy where products are sent around the world, and
industrial processes, especially the most dirty and dangerous ones, are
often exported to the developing South - has been used to create this
horrible double standard … one for the North, one for the South," she
says. "And it has been used as a shield or a way for U.S. corporations
to evade liability." In the early 1990s Texas was one of the few
states in the United States that didn't recognize forum non conveniens.
Plantation workers from a number of countries brought a suit in Texas
courts against DBCP-producing chemical companies that eventually went to
the Texas Supreme Court. Following this case, Fortune 500 companies in
Texas put pressure on the legislature to institute forum non conveniens,
claiming that the state was becoming prey to tort-happy foreign
plaintiffs. With this doctrine in effect, Rosenthal
believes that DBCP-affected workers have a slim chance of getting
justice. In their home countries, she explains, they face prohibitive
costs and legal systems that are unable to handle complex tort cases and
that are often corrupt. "[The banana workers] should be able to take
advantage of the legal system here in the United States and all its
procedural advantages, considering that the United State is the
headquarters, the home country of these big transnational corporations,"
she argues. U.S. influence With the hurdles of forum non conveniens in
mind, banana workers pressured the Nicaraguan government of Arnoldo
Alemán to find a different route to justice. In January 2001, the
Nicaraguan National Assembly passed Law 364, which was specifically
designed to assist banana workers in gaining compensation from companies
that produced or used DBCP. "This law establishes a very rapid procedure
for handling judgments that workers bring before the courts," says
Bayardo Izaba, an attorney with the Nicaraguan Human Rights Center in
Managua. The law, Izaba adds, establishes that the responsible parties
include the chemical manufacturers, its distributors, and the landowners
who use the pesticide. Officials with companies such as Shell and Dole
argue that the law is unjust because it requires defendants to post a
bond of $100,000 for each worker bringing suit. "Special Law 364
contains numerous provisions that simply make it impossible for Dow (or
the other targeted companies) to receive a fair trial in Nicaraguan
courts," says Dow spokesman Wheeler. "In fact, Law 364 ensures the entry
of judgments that are completely inconsistent with due process." According to The New York Times, Dow, Dole, and
Shell hired lobbyists to encourage the Bush administration to help annul
Law 364. Secretary of State Colin Powell was reported to have intervened
with Nicaragua's foreign minister over this issue, as did Otto Reich,
Assistant Secretary of State for Western Hemisphere Affairs. On March 19, 2002, then-U.S. Ambassador Oliver
Garza submitted a letter to Nicaraguan Foreign Minister Norman Caldera
asking the new government of Enrique Bolaños, a close ally of the United
States, to look into the constitutionality of Law 364. According to the
Nicaraguan press, the letter suggested that if the law were not removed,
investment in the country would be reduced. In September 2002, Nicaraguan Attorney General
Francisco Fiallos dispatched a petition to Nicaragua's Supreme Court
calling Law 364 unconstitutional and suggesting that it be nullified. In
an interview with El Nuevo Diario the following month, Fiallos stated
that the attorney general's office judged the law unconstitutional after
receiving a letter from Caldera that conveyed Garza's petition to
intervene against Law 364. Revelations of the letter prompted a massive
protest of banana workers over U.S. meddling in Nicaragua. As a result,
the Nicaraguan government withdrew Fiallos' statement and the Supreme
Court affirmed the constitutionality of the law. Powerful lobbying But the fight over Law 364 did not end there. A
number of powerful groups, including chemical companies and national
Chambers of Commerce, used last year's Central American Free Trade
Agreement (CAFTA) negotiations to target the law. Sources close to the
CAFTA talks say that the chemical companies, particularly Dow, lobbied
against Law 354. Dow acknowledges that it has put pressure on
the U.S. and Nicaraguan governments to eliminate Law 364. "The last
clause of [the First Amendment] protects every citizen's, including
corporate citizens, right to 'petition the government for a redress of
grievances,'" says spokesman Wheeler. "Dow attempted to make the U.S and
Nicaraguan governments aware of the total lack of fair play that Dow has
been subjected under Special Law 364 and in the Nicaraguan courts." While the final version of CAFTA does not
contain language that specifically targets Law 364, if ratified, the
free trade agreement's investment rules may lead to the gutting of
legislation such as Law 364. According to Stephen Porter, senior
attorney with Center for International Environmental Law in Geneva,
CAFTA's investment rules parallel NAFTA's infamous Chapter 11, which
allows corporations to sue governments if they feel that domestic
policies or laws create obstacles to profit-making. "If a law, such as the law allowing these
banana workers to sue foreign companies, were challenged by one of the
trade tribunals, it wouldn't make Nicaragua eliminate its law, but it
could render it totally ineffective," says Porter. He adds that even a
Supreme Court decision could be challenged by an investor under these
rules if they are seen to go against CAFTA's "fair and equitable
treatment" rule. "It creates a fuzzy, almost arbitrary legal standard
and allows investors to run roughshod over domestic laws," he says. Setting a precedent Plaintiffs' lawyer Juan J. Dominquez is,
nonetheless, optimistic that the banana workers will find justice. He
argues that the outcome of the most recent lawsuit would set a
precedent. "For the first time, there's a law in the country where the
tort occurred," he explains. "It provides defendants with a forum to
defend themselves. They can choose either forum and there are adequate
laws and measure of damages." Since the passage of Law 364, two Nicaraguan
courts have ruled against the chemical and fruit companies. On December
11, 2002, one court concluded that Dow, Shell, and Dole should pay
$489.4 million to 486 banana workers. In a separate case on March 15,
2004, a civil court in Managua decided these same companies must pay
another group of workers $82 million . However, because the companies no longer have
assets in Nicaragua, following the Sandinista revolution in 1979, and
because the companies are prepared to fight the judgments, the
enforcement of rulings in that country will be an uphill battle,
according to Kathy Hoyt of the Nicaragua Network, a public interest
group that has been assisting the banana workers. Last December, Dole brought a lawsuit against
some of the workers and their lawyers under the Racketeer Influenced and
Corrupt Organizations Act, or RICO, accusing them of falsifying
evidence. And in January, Shell and Dow filed a declaratory judgment
action asking the federal court in Banana worker Francisco Gonzáles nevertheless
hopes that Sasha Lilley is a staff writer for CorpWatch and a producer for Pacifica Radio's KPFA. Nan McCurdy contributed interviews to this article. |