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4 Rev. Eur. Comp. & Int'l Envtl. L. iv (1995)

handle is hein.journals/reel4 and id is 1 raw text is: 

















Ten years ago during the evening of 2 December 1984,
the residents of Bhopal, India were exposed to one of
the world's worst industrial disasters. A highly toxic
substance known  as 'methyl isocynate' (MIC) leaked
from the allegedly 'hightech' Union Carbide of India
Limited (UC) factory. This disaster killed over 2,500
residents of Bhopal and injured over 200,000 people
who  will bear the scars of this industrial genocide for
life. Most of the people that were killed or injured
lived in dire poverty around the UC plant. According
to studies carried out by Bhopal physicians, the 'gas
leak had serious repercussions both for the present
and future generations: many of those injured were
pregnant women, who  were forced to have abortions,
or  encountered  premature  deliveries and  foetal
deformaties. Research carried out by the Industrial
Toxicology Research Centre in Delhi illustrates that
toxic substances such as  MIC adversely affect the
immune  system and can potentially be mutagenic and
carcinogenic. The massive scale of damage  and its
long term effects on the ecosystem, in addition to the
adverse human   effects, are still uncertain. It is no
wonder  that the Bhopal accident has been described
by Dr C.S. Krishnamurthy, a leading Indian Scientist,
as 'a disaster for generations'. (Ed.: for an excellent
article on the litigation that ensued from the Bhopal
disaster, see C.M. Abraham  and  Sushila Abraham,
'The Bhopal Case  and the Development  of Environ-
mental Law  in India', ICLQ, 40 (1991), 334-365).

What  is the cost of development? Bhopal is testimony
to the reality that development unfortunately has
adverse ecological costs and infringes upon the most
sacred human   right, the right to life, far too fre-
quently. Many industries such as UC locate plants in
countries where environmental  laws are either too
weak or are not enforced. In the end, the environment
and its inhabitants, human, animal, fauna and flora,
pay the inevitable price. The articles in this special
issue on Asia in RECIEL not only confirm this bleak
observation, but also illustrate crucial developments
currently taking place in many Asian  countries to
ensure that in the future, development is sustainable
and precautionary.

The lead article by Mika Ichihara and Andrew Harding
is a fascinating study of the Malaysian Rare Earth


(ARE) case, yet another example of a company locat-
ing its operations in a country with lax environmental
laws, with serious human  and environmental costs.
The multiple dimensions of the litigation that ensued
as a result of the 'dumping' of toxic wastes from the
ARE  factory illustrate that environmental litigation
generally involves many complex legal issues as well
as intricate scientific considerations. The plaintiffs in
this case were residents near the ARE plant who sued
in negligence, nuisance and the rule in Rylands v.
Fletcher. Ichihara and Harding describe the High Court
and  Supreme  Court decisions, the latter of which
overturned the High Court's ruling to grant an injunc-
tion restraining ARE from continuing operations 'in
such a manner  as to cause the escape of radioactive
wastes' (as well as specifying how wastes must  be
stored in the interim). The authors engage in a con-
vincing critique of the Supreme Court's ruling that
lifted the injunctions thereby allowing ARE to con-
tinue operations. Notwithstanding this final judgment,
ARE's parent company   Mitsubishi Chemical decided
to close down its plant in Malaysia. The authors admit
that although the legal ruling was unsatisfactory from
the environmental and human  rights perspectives, in
the end vigorous local opposition coupled with strong
public opinion lead to the eventual shutdown of the
ARE plant. Indeed, the victory was certainly 'pyrrhic'.
The  next  two  articles describe developments  in
environmental  law in India and China. Martin Lau
explores the status of environmental laws in India by
first providing us with the historical background of
the law, and second describes modern developments
since the Stockholm Conference on Environment and
Development  in 1972. Lau's survey of existing legal
instruments and the innovative developments in pub-
lic interest litigation serve to reinforce his conclusion
that 'India now has the most developed and sophisti-
cated framework of environmental law in South Asia'.
Lau also briefly compares the approach in Pakistan,
where  similar environmental problems are encoun-
tered and where  the right to a healthy environment
has been firmly planted in law, as in India. (Ed.: see
Martin Lau's case comment  on Pakistan in this issue
of RECIEL).
Dr Hong Mei's article on 'Legal Gateways' is an excel-
lent survey of both the historical background and cur-


Iv


Editorial

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