May 13, 2004
Barren Justice: Banana Workers Fight for Pesticide Settlement
http://www.corpwatch.org/issues/PID.jsp?articleid=10928
Former banana workers in Nicaragua face many obstacles in getting
compensation from multinationals for pesticide exposure on the
plantations.
By Sasha Lilley
Special to CorpWatch
May 13, 2004
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 Chinandega, Nicaragua, in
1975, when he was 20 years old. "It's very painful, you know, each one
of us would like to have our own child, a child of our blood. But I
was poisoned."
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 Central
America, the Caribbean, Western Africa, and the Philippines who have
sued several U.S. corporations for exposure to DBCP over the last two
decades. In March, Nicaraguan banana workers brought a lawsuit in Los
Angeles Superior Court against Dole, Dow, Occidental, and Shell, among
other corporations, alleging that exposure to DBCP made them sterile.
DBCP, or dibromo-chloropropane, was banned in the United States in
1979, but U.S. chemical companies continued to export it until the
mid-1980s.
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. The companies chose not to limit production
of DBCP but instead started exporting 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.
Because other nations had less stringent labor and environmental
regulations, however, chemical companies continued to export DBCP,
possibly as late as the mid-1980s. According to the lawsuits brought
by banana workers, following the US ban Dow Chemical, Shell Oil,
Occidental Petroleum, and Amvac Chemical deliberately exported their
existing DBCP inventory to Nicaragua, and Standard Fruit continued to
use it on banana plantations. Nicaragua did not prohibit the use of
DBCP until 1981.
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. The 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 Bolaos, 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.
Mark Smith, who attended the negotiations as a representative of the
Association of American Chambers of Commerce in Latin America (AACCLA)
and the U.S. Chamber of Commerce -- whose board of directors includes
a Dow executive -- argued that the neutralization of Law 364 should
take place before trade agreements are signed. CAFTA still awaits
ratification.
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 support 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 California to declare future rulings in any of the lawsuits
filed in Nicaragua under Law 394 to be unenforceable in the United
States courts.
Banana worker Francisco Gonzáles nevertheless hopes that U.S. courts
will be able to provide rulings and enforcement that differ from the
mainly fruitless attempts in the past. "I ask the companies and the
North American judges to have a little bit of conscience with us, the
Nicaraguans affected by [DBCP] that was used here in the '70s and
'80s," he says.
Listen to a related story by Nan McCurdy on Free Speech Radio News
Sasha Lilley is a staff writer for CorpWatch and a producer for
Pacifica Radio's KPFA. Nan McCurdy contributed interviews to this article.
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