I. Introduction: Harm as depletion in Bhopal
It has been over 40 years since the world witnessed what was, at the time, described as ‘the most tragic industrial disaster in history’Footnote 1 and since called ‘the most devastating toxic tort disaster ever seen’.Footnote 2 In December of 1984, the city of Bhopal, located in central India, saw the leak of some 32 tons of methyl isocyanate gas from a Union Carbide plant spreading steadily across its terrain. The Indian winter trapped the fumes and increased the injury to vast swathes of Bhopal’s population, killing between 5,000 and 25,000 people and causing persistent harm to at least two-thirds of its survivors.Footnote 3 The disaster disproportionately affected the poorest city dwellers in Bhopal, the Union Carbide leak radically altering the social and economic fabric of everyday life, entrenching social disempowerment (‘Bhopal’ or the ‘Bhopal tragedy’).Footnote 4
Bhopal has become a paradigmatic example of both a massive human rights harm and the persistent inability of survivors of atrocity-related industrial disaster to obtain adequate remedies.Footnote 5 This article argues that Bhopal exposes a more fundamental limitation in the field of business and human rights (BHR): the inability of key legal doctrines shaping that field to recognise and respond to certain forms of harm, particularly in its intergenerational form.Footnote 6
This inability is rooted in the systematic exclusion of intergenerational harm from existing legal frameworks. This is because, from both a jurisdictional and impact perspective, the frameworks supporting the BHR field rely on spatially and temporally bounded conceptions of harm, locating injury at specific places and in particular moments. A key legal mechanism through which this logic has been compounded is the doctrine of forum non conveniens (FNC).Footnote 7 Although treated as a procedural doctrine required to ensure comity between municipal courts, FNC has played a constitutive role in shaping how Bhopal is legally understood. It situates the harm experienced as an event located elsewhere and fixed in the past. In so doing, it contributes to the fragmentation and externalisation of harm. This, in turn, renders its ongoing intergenerational effects extralegal and juridically invisible.
This article argues that what is rendered invisible by this, as well as other, framing practices is a form of ‘harm as depletion’. Drawing on the work of Beth Goldblatt and Shirin Rai, ‘harm as depletion’ is understood as ‘the depletion of social reproduction entailing a range of harmful impacts on individuals (ordinarily, women), family, community and … the physical infrastructure of the worker’s household’.Footnote 8 It includes depletion to biological reproduction, including a variety of services to maintain families and forms of care, as well as unpaid production undertaken in the home and for the community.Footnote 9
Harm as depletion captures the reproductive, gendered and intergenerational experience of harm. In Bhopal, harm as depletion is most visible in the lives of women and their descendants, whose everyday conditions of survival continue to reflect the ongoing consequences of the disaster. In this respect, harm as depletion is not a discrete injury but a continuing condition, experienced unevenly across gender, age, abilities, caste and religion, amongst other axes of social difference.Footnote 10
Understanding how the FNC doctrine reinforces the invisibility of harm as depletion and may reduce Bhopali women’s ability to achieve justice is particularly significant for the BHR field. FNC remains a central site of contestation in negotiations for the proposed ‘internationally legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’Footnote 11 (BHR treaty). Its implications therefore require close examination. Additionally, the concept of adverse human rights impacts (AHRI) consolidates rights-based, attributional, and risk-structuring logics while retaining the shared requirement that harm be rendered discrete and attributable. Here, questions of jurisdiction, access to remedy, and corporate accountability have repeatedly turned on the ability (or inability) of affected communities to access foreign courts.Footnote 12 Read in this light, Bhopal is not only a historical case but a ‘telling instance’ showing how a jurisdictional doctrine and understandings of impact structure the visibility and legal intelligibility of harm within the BHR field.Footnote 13
This article proceeds by recognising that harm as depletion requires more than doctrinal adjustment. It requires a shift in orientation within BHR itself: away from institutional pragmatism and towards a feminist re-reading of the FNC legal doctrine, utilising what Rai has called ‘building solidarities to reverse depletion’ and Staggs-Kelsall describes elsewhere as embedded solidarity.Footnote 14 Thinking with affected communities in this sense—what might be described as a form of con-scientia—becomes central to any attempt to secure just outcomes.Footnote 15 It requires attention not only to legal recognition for a specific impact, but to the conditions through which harm is lived, experienced, and resisted over time.
This article proceeds as follows. Part II examines FNC as a doctrinal mechanism through which depletion is rendered invisible, with particular attention to its role in structuring jurisdictional displacement in the Bhopal litigation. Part III considers existing BHR approaches to harm, concentrating its analysis on how the field understands AHRIs and the resulting characterisation of the relationship between rightsholders and transnational corporations and other business enterprises (business enterprises). Part IV reframes harm as depletion and considers its implications for BHR. It argues that a normative reorientation of the field towards rightsholders and their lived realities of harm remains important, if the field is to live up to its promise of contributing to ‘a socially sustainable globalization’.Footnote 16 Part V then develops embedded solidarity. Solidarity is developed as a counterpoint to what the authors argue is a pragmatist approach which primarily structures the BHR field. The conclusion reflects on what Bhopal reveals about the limits of current BHR frameworks and the need to rethink harm itself as a relational and ongoing condition.
Women remain central to the Bhopal tragedy. They took on the battle against depletion wholeheartedly and continue to spearhead the Bhopal social movement’s response to the disaster. They have faced failure but have remained unwavering in their attempts to secure the transformation accompanying ‘the centripetal move from home to workplace to the streets, in search of collective strength, leadership potential, sharing of experiences, democratic process of decision making, and sustaining of the collective’Footnote 17 response to injustice. Understanding the harm that Bhopali women have suffered as reproductive, gendered and intergenerational sheds light upon the normative invisibility rendered the norm in Bhopal. It may yet render visible what law can do to prevent ongoing depletion.
II. The jurisdictional production of distance
A. The Bhopal litigation: A snapshot of jurisdictional displacement
In this section, we show how the FNC jurisdictional doctrine does more than allocate cases: it structures the conditions under which harm is recognised. Drawing from the legal findings in the Bhopal litigation, we trace how harm is rendered illegible to some forums and not others. We argue that jurisdiction structures harm visibility and, in so doing, renders some harms quantifiable while leaving others effectively beyond legal recognition. This matters not simply because it likely produces unjust outcomes in cases such as Bhopal, but because it reveals a deeper limitation: the jurisdictional doctrine does not merely fail to capture legal harms, it helps constitute the conditions under which those harms are rendered relevant.Footnote 18 In this respect, ‘a state or states can produce or reproduce transnational communities by advancing the interests, value and expectation of particular actors’.Footnote 19 In the case of Bhopal, those interests were clearly aligned with Union Carbide and not the intergenerational survivors of industrial disaster.
The ‘valiant violated’ of Bhopal have suffered over 40 years of injustice.Footnote 20 Their injustice began one week after the Bhopal tragedy, as lawyers from the United States (U.S.) flocked to India to file suits in both jurisdictions. Claimants were signed on, in some instances ‘at the rate of thousands per week, indicating they were not giving or receiving much in the way of instruction or advice’.Footnote 21 The Government of India swiftly bureaucratised their claims: a presidential order, soon followed by an official government act, the Bhopal Gas Leak Disaster Act, ensured that the Union Government of India had parens patriae control over the Bhopal case.Footnote 22 The Act provided a claims scheme as the primary mode of redress in India, circumventing any right to bring individual cases. This resulted in the appointment of a Commissioner to register, record, and process individual claims through an administrative framework limiting compensation monies.Footnote 23 Perhaps more importantly, it also gave the Government of India the right to take over the litigation in the U.S. and to ‘dictate strategy’ as well as ‘scuttle ongoing settlement negotiations’.Footnote 24
Proceedings before the U.S. courts were swiftly put in place. Within one month of the Bhopal disaster, 145 purported class actions were filed in the district courts across the country.Footnote 25 Exactly one month after the leak occurred, the American Judicial Panel on Multi-District Litigation (JPMDL) transferred these claims to the U.S. District Court for the Southern District of New York, where they became a consolidated complaint to be heard by Justice John Keenan.Footnote 26 The first case heard before Judge Keenan in 1985 would set a precedent for cases subsequently brought by the Government of India on behalf of the Bhopal victims and heard in 1989, 1992 and 1993.Footnote 27 A further 12 decisions were handed down by Judge Keenan against the victims of Bhopal between 2000 and 2014.Footnote 28
The key finding upon which the U.S. litigation turned was whether the U.S. courts were to be ruled out based on the doctrine of FNC. Under U.S. law, in order for a district court to rule in favour of an FNC application, it had to consider ‘whether the alternate venue was “adequate” and whether, upon balancing “several public and private interest factors” justice would be served’.Footnote 29 Judge Keenan determined, in agreement with the Indian lawyers hired by Union Carbide, that the Indian courts system was well-equipped to hear any cases arising from Bhopal. Additionally, according to Justice Keenan, there were insufficient grounds to ‘burden the American taxpayer’ with the cost of the case.Footnote 30 In what Upendra Baxi famously termed ‘Dow Jones jurisprudence’ at the time:
A more rigorously conservative view of the public interest concerns of the United States, and a more joyous surrender of power and discretion to do justice than Justice Keenan’s would be difficult to locate in the recent annals of American jurisprudence.Footnote 31
Juridical failures in Bhopal can be seen to result from the FNC doctrine being construed in the U.S. courts as being subject to the ‘balance of conveniences’ test. Rather than understanding any absence of a prohibition against this test as a ‘gap’ needing to be filled, we argue that the absence (or silence) in private international law enabling this interpretation is intentional, ensuring municipal courts have a wide ambit of authority to determine how the FNC doctrine is determined. As will be seen, characterising the harm as spatially and temporally sealed by the FNC doctrine ensured a denial of justice for Bhopal’s claimants, and a complete refusal to consider the primary harms to generations impacted by the disaster.
B. FNC and spatial displacement: Justice displaced as justice denied
International law gives states a wide ambit of authority to determine when and how their courts utilise FNC.Footnote 32 A private international law doctrine with public international law consequences, FNC resolves conflicts of jurisdiction.Footnote 33 It forms one of two approaches whereby courts determine which forum is the most appropriate to proceed to trial. It can be compared with the doctrine of lis alibi pendens, in which there is no element of discretion: under this doctrine, a court can only decline jurisdiction where proceedings involving the same cause of action and between the same parties have commenced elsewhere.Footnote 34
Simona Grossi traces the FNC doctrine to its roots in the Scottish legal doctrine of forum non competens. Initially used in the seventeenth century to ameliorate potential abuses of process where the court’s exercise of jurisdiction allowed for an exorbitant use of its authority,Footnote 35 she notes that, as the doctrine developed in the case law in England, it was applied typically to avoid extremely vexatious proceedings for both the litigants and the court itself. In this respect, FNC was understood as a shield (not a sword)—a means through which judges could determine there was a ‘real unfairness’ to one of the parties in permitting the case to go ahead.Footnote 36 In this respect, the FNC doctrine as understood in English law was utilised only in exceptional circumstances. To a certain extent, this remains how the English courts consider the doctrine, although recent case law remains mixed.Footnote 37
Conversely, in the U.S., the doctrine has been subject to a judicially created ‘balance of conveniences’ test, trumping these more traditional jurisdictional bases. According to this test, the question to be asked by courts is not upon what grounds the jurisdictional bases for a claim can be denied (based upon legislation passed by Congress) but rather, to assess the relative convenience of the case brought before the court in question. This discretion was first granted to the District Courts in the case of Gulf Oil Corp. v Gilbert. Footnote 38 In Gilbert (and on appeal), the U.S. Supreme Court affirmed that a claim properly brought with a District Court’s jurisdiction could be denied on grounds that a change of venue was inconvenient to the defendant corporation, even although this resulted in the exclusion of a foreign claimant from U.S. courts. The Supreme Court appeared to err in its judgment, in that Gilbert was not essentially a FNC case: the doctrine applied to deny jurisdiction to a claimant, upon the grounds that its courts did not have statutory authority to hear the case. Gilbert was essentially a change of venue case, in that the case would ultimately be heard in Virginia.Footnote 39 This had the effect of providing a wide ambit of judicial authority to apply FNC, even where a claimant could provide legitimate jurisdictional bases for their claim to be heard.
In a series of cases which followed, the ‘balance of conveniences’ basis for FNC was further affirmed. Although framed as considering ‘a combination of public and private interest factors’, the basis turns largely upon assuring the smooth functioning of process as in Gilbert. Footnote 40 The doctrine was then further expanded in Piper Aircraft v Reyno—the case that Justice Keenan primarily relied upon in dismissing the Bhopal cases.Footnote 41 In Piper, the respondents were Scottish nationals whose next of kin were instantly killed in a tragic accident while on board an aircraft manufactured by Piper while flying over the Scottish Highlands. Citing FNC, the petitioners successfully removed their case to the California District Court, which then was transferred to the State of Pennsylvania (where Piper was incorporated). That Court then granted Piper’s motion to dismiss on grounds of FNC. The case was overturned on appeal, where the Court determined in favour of the Scottish claimants. Piper then filed a motion, again on the grounds of FNC, against the Scottish claimant. Although not a transfer of venue case, the Supreme Court applied the same reasoning to Piper as it had to Gilbert, providing the District Courts with an even wider ambit of authority as to when to use this doctrine.Footnote 42
The Supreme Court in Piper clarified that the FNC doctrine was a means through which U.S. courts could foreclose matters to reduce foreign plaintiffs entering the U.S. system. The Court cited complex conflict of laws analyses and preventing the defendant corporation from having to engage in timely and expensive discovery processes, as two key aspects requiring it to reverse the Court of Appeals decision.Footnote 43 The balance of conveniences test applied by the Court ensured that the harm to the applicants—each of whom suffered the loss of life of one of their relatives or next of kin—was seen primarily as a matter of procedural expediency, rather than encompassing any analysis of the range of impacts on the families themselves, and the intergenerational harms that the loss of life might mean they incurred.Footnote 44 As a result, the harm suffered by foreign plaintiffs became spatially distant and temporally closed, making it more challenging to recognise legally in the U.S. courts.
It was precisely this reasoning that denied the survivors of Bhopal jurisdiction in multi-district litigation filed by the Government of India. What Piper essentially sanctioned was an ongoing assessment of the convenience of bringing the litigation to the United States’ courts.Footnote 45 It further resulted in both the Sajida Bano (2000–2005) and Janki Sahu (2005–2013) complaints lacking legal standing, because their cases were rendered already assessed by Justice Keenan’s earlier decisions.Footnote 46 FNC arguably had become a tool of oppression: an act of regulation utilised to silence claims not due to the lack of a forum but its inconvenience to U.S. taxpayers.
In the Bhopal cases, the FNC doctrine ensured that the harms suffered by Bhopali women remained completely irrelevant. Yet as Dasgupta notes, the Bhopal disaster was transformative for many women, who had no choice but to respond to the magnitude of suffering their families faced. High levels of toxicity in the atmosphere affected every aspect of daily life. Their anger at this injustice mobilised action.Footnote 47 Yet it would come to life outside the courtroom.
C. The women of Bhopal: Justice denied on all fronts
As already hinted at, the injustice afforded by Justice Keenan’s decisions was further compounded by the Indian courts.Footnote 48 In their feminist re-writing of a Constitutional challenge pertaining to Bhopal in the Supreme Court of India, Sannoy Das and Ananyaa Mazumdar highlight the disempowering nature of the law supplanting victim-survivors as plaintiffs. Although not going so far as to invert the liberal doctrine informing the verdict, they point out how the Courts make repeated references to the powerlessness of the victims of the tragedy, reading ‘the power of the State to act for the benefit of such survivors as essentially unlimited—not unlike the patriarch’s traditional authority within the household’.Footnote 49
This, yet again, rendered the women’s concerns largely absent. The depletion they faced in having to maintain social reproductive labour—childcare, caring for the elderly, engaging in community services and all the many micro-caretaking tasks sustaining their households—intensified, as environmental toxicity and debilitating health conditions concurrently reduced their capacities. Yet these forms of harm as depletion remained largely unintelligible to the administrative structures responding to compensatory claims, because they were unable to be translated into discrete, attributable units of loss.Footnote 50
It might be argued at this point that harms of this magnitude exceed what any corporate actor could reasonably be expected to remedy. Yet this response risks obscuring a prior question: not what can be compensated, but what is recognised as harm in the first place. It is at this level that the limitations of the current FNC doctrine and, additionally, BHR legal frameworks, become apparent.
Despite this, the women of Bhopal sustained the fight for justice outside of the courtroom. They have done so under circumstances of ongoing depletion. They have borne the brunt of human rightlessness in the context of corporate redress for the Bhopal disaster.Footnote 51 We are reminded here of Veena Das’ keen insight that ‘pain and suffering … are not simply individual experiences which arise out of the contingency of life’ but ‘may also be experiences which are actively created and distributed by the social order itself’.Footnote 52 Utilising the feminist concept of depletion as harm, we argue that this compounds the violence of the original disaster, both in material and epistemic terms. Before doing so, however, we first consider how harm is constructed in the BHR field.
III. The Concept of adverse human rights impact in BHR
A. The concept of harm in the BHR field: The centrality of adverse impact
An analysis of the FNC doctrine provided in Section II highlighted a central dimension rendering harm spatially and temporally distant from the site of those experiencing it. Yet jurisdictional displacement remains only one aspect of a more fundamental feature of transnational litigation: the requirement that harm be translated into a recognised cause of action.
In this regard, in the BHR field, harm must be able to be redressed through an existing ‘galaxy’ of legal and regulatory obligations and responsibilities.Footnote 53 In the case of contract law, this ordinarily requires imposing substantive responsibilities upon corporations with respect to an agreed future outcome.Footnote 54 This continues to be challenging to prove in situations of social harm, where courts tend to prioritise ‘a bilateral model of contracting’ in which a contract is imagined as ‘an agreement between two or more parties that is both isolated and insulated from the broader society’.Footnote 55 In the case of tort law, harm is understood as a legally cognisable injury to person, property, or protected interest, caused by an act or omission (in the case of tort or delict/non-contractual liability).Footnote 56 The former ordinarily categorizes harm as the frustration of an agreed normative future between the parties to the contract; the latter, a wrong external to a (legal) relationship.
Conversely, in international human rights law, harm has been characterized as a legally recognized violation, until very recently almost exclusively attributable to states. Harm here is not simply a loss or injury; it is additionally characterised as a normative violation resulting from the moral and psychological injury to the person’s humanity.Footnote 57 This, of course, oversimplifies what human rights are—both in terms of their genealogy and their implications for how ‘human’ is understood as a racialised, gendered and individualist ‘subject’ (and hence what rights both should, and are, being afforded, and to whom).Footnote 58
In the BHR field, these distinct legal grammars are brought into alignment through the concept of adverse human rights impacts.Footnote 59 AHRI consolidates rights-based, attributional, and risk-structuring logics while rendering harm discrete, attributable, and legally intelligible—most recently, resulting from due diligence laws.Footnote 60 Addressing AHRI remains central to the corporate responsibility to respect human rights. That business enterprises avoid causing, contributing to or being directly linked to AHRIs is a foundational principle of the UNGPs and arguably, to responsible business conduct.Footnote 61
According to key explanatory texts for the United Nations Guiding Principles on Business and Human Rights (UNGPs),Footnote 62 an AHRI occurs when an action removes or reduces an individual’s ability to enjoy his or her human rights.Footnote 63 AHRIs can be both actual and potential. An actual AHRI is an impact that has already occurred or is occurring, whereas a potential AHRI is an impact that may occur but has not yet done so.Footnote 64 This helps frame the risk assessment of which rights business enterprises should prioritise first.Footnote 65 Under the UNGPs, risks of AHRIs should be determined according to what’s known in policy shorthand as their ‘salience’: notably, their severity or irremediability (or: their scale, scope and inability to be remediated) as well as the likelihood of that AHRI occurring.Footnote 66
Across the UNGPs, the OECD Guidelines for Responsible Business Conduct,Footnote 67 and the EU’s Corporate Sustainability Due Diligence Directive (CSDDD), and parallel to the FNC doctrine, harm becomes legally visible through its translation into discrete, attributable, and prioritised units of assessment. In this respect, the salience metric remains prevalent to ensure business enterprises prioritise risk that is most discretely harmful. Drawing from the UNGPs and the OECD Guidelines, the CSDDD operationalises salience-like logic in Article 9, which enables enterprises to prioritise the severity and likelihood of the adverse impacts occurring.Footnote 68 Notably, however, the EU’s definition follows the OECD Guidelines in departing from the UNGPs conception of salience by omitting ‘irremediability’ from risk prioritisation.Footnote 69
This narrows the evaluative frame to a two-part assessment of severity and probability rather than the full triadic account of scale, scope, and irremediability. While remedy continues to be considered, it remains largely distinct from this analysis. By prioritising the severity and probability of risk, the business enterprise can subsume the consequences to rightsholders within a risk-based calculus that continues to treat harm as discrete, attributable and ultimately manageable for the corporation, even where restoration and remedy is not meaningfully acceptable to the affected rights-holders. Although the CSDDD does prescribe an elaborate system through which business enterprises must provide for remedy, the Directive (i) fails to address directly rightsholders’ (now reconstituted as ‘stakeholders’) engagement in the design, implementation and evaluation of its core remedial aspects; and (ii) enables the corporation to consider the consequences of irremediability as discrete from itemised harms the enterprise itself has determined as most severe and likely.
Hence, the boundaries of the BHR field, rendered clearest in the characterisation of AHRIs, preserve the logic of legal intelligibility while decoupling questions of remediation from the structure of harm assessment itself. As an example, a business enterprise can reconstitute one aspect of the right to an adequate standard of living (food) as ‘access to water’ (note here, this is no longer a right).Footnote 70 It can then monitor the inability to access water as an adverse human rights impact that is most severe and most probable in its Global Value Chain (GVC). It can prioritise conducting due diligence for this risk. It can engage an elaborate system of identifying this risk and monitoring the enterprise’s ongoing actual and potential risk of impact.Footnote 71
Yet when determining remedial action for this risk, what constitutes a remedy does not necessarily require that: (i) rightsholders consent to the remedy offered (though extensive initial consultation is advised in the UNGP and the CSDDD); (ii) the enterprise to contextualise that impact (though again, is advised ‘where possible’), resulting in it being able to engage in off-setting rather than fully replenishing water where it has been used; (iii) that a specific risk is assessed in relation to other risks on an ongoing basis; (iv) the ongoing harm of the GVC itself , and the prospective need to reduce the product produced; or (v) the intergenerational consequences of failing to prevent ongoing risks (though states should produce guidance on this).Footnote 72 In the case of Bhopal, this would ensure a discrete harm to some rightsholders from toxicity in the water supply caused by factory waste from the Union Carbide disaster would remain de-linked from historical impacts and intergenerational harm to the children of the women drinking that water, or the financial, physical and psychological depletion caused or contributed towards women consistently having to source water from an alternate supplies further away from their households.
What can be seen as harm is structured to remain discrete, while simultaneously decoupling that visibility from the relational and temporal conditions in which harm is lived. It may be objected that law must render harm discrete to determine liability. That is undoubtedly correct. The difficulty, however, lies in the slippage between methodological necessity and ontological claim: what law must do to decide cases comes to define what harm is taken to be. It is to this consideration that we now turn.
B. From event, space, and subject, to harm as depletion
In the previous sections of this article, we have detailed how harm is structured in both the FNC doctrine and the BHR field’s framing of AHRIs and salience. We argued that the logic of ‘impact’ operates by interrupting continuity. It assumes specific harms can be discrete and administered and that this is sufficient for the purposes of rendering rightsholders accounted for and their harms redressed in the GVC.
Here, Shirin Rai’s explanation of harm becomes instructive.Footnote 73 According to Rai, ‘depletion is harm’.Footnote 74 Too often, it is rendered incalculable, precisely because the cost, in social reproductive terms, is borne by maintaining a paradigm which at once valorises care-taking roles and maintains the work required to undertake it as simultaneously priceless and free/costless.Footnote 75 As Goldblatt and Rai note, the everyday tasks required to fulfil social reproduction are required to maintain the global capitalist economy. Yet they remain structurally unrecognised as a mode of production within dominant frameworks.Footnote 76 This includes the ongoing work of care, maintenance and survival disproportionately undertaken by women and often within conditions of poverty, violence and material precarity. While unpaid care-work has received some recognition at the international level, the question of remedy where harmful business practices cause depletion remains under-explored.Footnote 77
Depletion here is not reducible to a single form of harm or an individual’s suffering. It names the condition of sustaining life under injurious conditions which are persistently externalised and unevenly distributed. Hence, depletion is not simply an expansion of harm’s scope, but a reorientation of how harm is understood in the first place.
IV. Harm as depletion: Reconsidering the communal effects of Bhopal
A. Social reproduction, unpaid labour and harm as depletion
The previous section illustrated the limitations of an existing legal doctrine in both quantifying and responding to harms suffered through industrial disaster. In Bhopal, the legal frameworks used to assess both injury and damage structured harm spatially and temporally away from the sites at which survivors were most likely to obtain a modicum of justice. Through the FNC doctrine, harm was displaced spatially (outside of the U.S.); through event-based understandings of injury, it was fixed in December 1984. Yet what exceeds those doctrinal framings remains.
In this section, we explore the contours of harm as depletion.Footnote 78 Goldblatt and Rai emphasize that harm is ongoing (not event-based), reproductive (in that it is both social and biological) and intergenerational. Grounding this definition in the experiences of the women of Bhopal, we illustrate the limits of existing legal categories in the BHR field and their consequences for its juridical response to industrial disaster. What these experiences reveal is the need to rethink the terrain on which the concept of harm is built in the BHR field. Rather than treating harm as a wrongful setback to an individual’s interests, we locate it in the effects of the wrong on the socially structured relationships within which individuals live and foreground the lived realities of depletion as experienced by the women of Bhopal.
B. Harm as depletion embodied in the women of Bhopal
i. A slow death, without weapons
The Bhopal disaster inaugurated ongoing conditions of harm whose consequences were immediate, visceral and enduring. For many women, it marked a slow realization of the systemic violence multinational enterprises were unleashing in Madhya Pradesh:
The women initially had very little idea what the factory was producing. After the horrific gas disaster they realized it was some kind of toxic substance that could have fatal consequences. … later the women began to understand that ‘all multinational companies have spread so much poison in our country: they are making us die a slow death, without using any weapons’.Footnote 79
These accounts were not merely descriptive; they reflected emerging understandings of harm that exceeded the categories available to law. Suroopa MukherjeeFootnote 80 shows how women’s narratives failed to reach both public and legal forums. In her account, the patriarchal nature of the response to the disaster is evident in economic rehabilitation schemes meant to ‘tap women’s skill …. without disturbing the status quo of women’s social identity’.Footnote 81 That identity remained subordinate to men and further inflected by socio-economic and religious exclusion.
Many women most seriously affected were Muslim and living in poor conditions near the factory, already marginalized before the disaster. Bhopal entrenched this exclusion, even as it generated new forms of collective awareness.
ii. Reproductive and embodied depletion
The intimate nature of Bhopal’s depleting impact became most apparent at the site of women’s bodies. Despite never setting foot on the factory floors, the scars inflicted on women’s sexual and reproductive health have been extensively documented.
Testimonies recount stillbirths, congenital deformities, menstrual irregularities, and repeated miscarriages—described as an ‘epidemic of gynaecological diseases’.Footnote 82 Relief structures failed to respond, and women were often discouraged from disclosing their suffering.Footnote 83 These harms reveal the wrong not as an isolated bodily injury but as a relational experience. The intergenerational consequences are stark: the unborn children of the women of Bhopal are not rendered visible when law misrecognises ‘impact’ while relying on the individualist conception of harm. Under this framing, the most severe consequences of the disaster fall outside legal recognition.
C. Social reproduction and daily survival: The spatial significance of harm
The biological harms experienced by the women increased the labour required to sustain daily life. Physical injury reshaped their ability to work, care and survive.
Naraini Bai, identifying as a Hindu woman, described how the gas ‘crept into the bread and butter’ of Bhopali lives, reducing capacities to earn a living. Many survivors were unable to work continuously due to breathlessness and chronic illness. Environmental degradation compounded this burden. As Sheila Jasanoff noted, the long-term effects of exposure were largely uninvestigated prior to the disaster.Footnote 84 Survivors such as Shahzadi Bi, identifying as a Muslim woman who lived in one of the nearby slum-colonies, describe living through ‘two disasters’: the gas leak and the ongoing contamination of water sources. Many affected by this latter contamination were not recognised as victims.Footnote 85
These conditions intensified gendered vulnerability. Younger women faced stigma and exclusion from marriage; those already married remained unable to fulfil expected roles in their households, exposing them to mistreatment and domestic violence and abuse. Harm here reorganised the conditions of social reproduction, entrenching dependency and inequality.
D. From depletion to collective action
In response, the Bhopal women refused to remain passive recipients of harm. Survivor-led organisations documented testimonies, mobilised communities and sustained collective resistance. The two major survivor groups in Bhopal—Bhopal Gas Peedit Mahila Udyog Sangathan and the Bhopal Gas Peedit Mahila Stationery Karmchari Sangh, run by women working in sewing and stationery centres, respectively, documented and maintained oral testimonies evidencing social justice issues emerging out of the disaster. Women such as Hazra Bi, identifying as a Muslim activist, played a central role in bringing together survivors to articulate claims extending beyond the immediate disaster. Depletion was not only endured but mobilised. It became the basis for new forms of political life. In the absence of recognition in the courtroom, women reconstituted their claims through collective action.
Protests, marches and hunger strikes brought these demands to national attention. While compensation remained inadequate, these movements secured incremental gains, including access to clean drinking water for affected communities. As Dhingra, together with Dutta, observe, the women’s presence in public space has offered a sustained and ‘searing critique of state apathy, corporate power and the development model underpinning the disaster’.Footnote 86
E. Intergenerational depletion: The inter-temporal effects of Bhopal
Despite these victories, the effect of Bhopal became intricately infused into the social fabric of people’s lives, extending beyond the impacts on the immediate survivors. The intergenerational impact is evident in research indicating how the contamination of water and breast milk resulted in severe harm suffered by both children and the aged. Ongoing exposure to Bhopal shapes the health and life of subsequent generations. This violence remains largely unrecognised within legal frameworks, reinforcing the temporal limits through which harm is understood. What the consequences of the Bhopal disaster make clear is that harm as depletion is not a disaster’s aftermath. It is a condition shaping how life is sustained. For the women of Bhopal, depletion is the norm.
V. Implications for the BHR treaty and the BHR field as a whole
A. From impact to condition: The limits of harm in BHR
In the previous sections, we evidenced how harm experienced by Bhopali women cannot be characterised by existing legal categories in the BHR field. Specifically, we evidenced that attribution based upon impact is based on at least three assumptions which render harm as depletion largely invisible. In this section, we show how the marginalisation of remedy afforded by AHRI and human rights due diligence frameworks risks transforming harm from ‘the abrogation [basic] rights … which limits the individual’s chance’ to fulfil themselves into a risk managed by the business enterprise.Footnote 87 As a result, the concept of harm becomes collapsed with the concept of cost, and risks further weakening the connection between recognition and redress. In this section, we further explain that risk, and its potential consequences.
i. Impact as event-based
First, considering harm as event-based. This requires that the harm constituted by an AHRI is linked to discrete temporal action. This freezes in time any claim to have been harmed, reducing business enterprises’ obligation to consider intergenerational accountability when assessing the severity and likelihood of salient human rights risks. In the case of mandatory human rights due diligence, this is compounded by the absence of ongoing irremediability as a criterion for assessing both risk and impact. The severity and probability of any given risk assumes a prospective risk is in play: it does not require that the business enterprise connect that risk to historical abuses which may affect both the extent to which a specific risk has resulted in (i) the accumulation of ongoing harms and (ii) the overall structural response required to eliminate harms resulting from the risk identified.
In Bhopal, focussing on impact would have rendered the history of Union Carbide’s failures illegible to the courts and to any compensatory claims made regarding the depleting livelihoods of women. For future BHR claimants, the severity of the harm identified may be recognised without a corresponding obligation to provide substantive redress, where it can be shown that a business enterprise conducted reasonable due diligence sufficient to evidence it attempted to prevent such harm. Furthermore, the focus of the business enterprise is upon managing risk rather than assuring elimination of the harms suffered. As long as ongoing harm is not a salient risk and remains administratively tolerable, it can be ignored.
ii. Impact as spatially bound
Second, harm as impact is spatially bound. This has consequences both for the causal connection that can be established by attribution, as well as the jurisdiction in which claims can be brought. In this respect, any harm attributable to an ‘impact’ outside of the site where the industrial disaster occurred (i.e. Union Carbide’s plant) must be shown to have been caused, contributed, or directly linked to the company’s original impact in order to be attributable to it. Additionally, any claims outside of India’s jurisdiction could be rendered ‘inconvenient’ and therefore unable to be heard, in light of the changes to the way that doctrine is understood in U.S. courts.
While arguments against extraterritorial jurisdiction have been challenged in recent BHR cases, as yet, the transnational law and legal processes animating the BHR field require that cumulative harm is converted into discrete, assessable units. To date, arguably the greatest advances in the BHR case law have been in ensuring that formal corporate control is not necessarily required for a parent company to be held responsible for the actions of its subsidiary.Footnote 88 This has included cases brought in the UK, France and Canada, where liability has been established in contract, tort, for terrorist financing or violations of customary international law, and against equity-based groups.Footnote 89 However, thus far claims for damages have been limited, in some instances excluding extraterritorial criminal prosecution and civil law damages brought by employees, despite the fact that workers have been exposed to hazardous risks including death, injury or kidnapping attributable to the actions of the subsidiary or contractor.Footnote 90 Even if the courts were to find such actions admissible, it remains clear that business enterprises are not required to consider the systemic risks resulting in harm as depletion.Footnote 91
iii. Impact as tied to identifiable ‘rightsholders’
Finally, harm as impact must be tied to discrete and identifiable rights and by extension, rightsholders. This results in the forms of harm attributable to the business enterprise being established through individualised relationships between specific rightsholders and the impact suffered. Yet paradoxically, the framing required by the business enterprise in order to establish an AHRI assumes a recursive looping between ‘risk to people’ and ‘risk to business’ that does not reliably play out in practice. As Malcolm Rogge explains,
The potentially recursive and looping causal relationship of ‘risk to people’ and ‘risk to business’ is best illustrated by the concerns that may arise over the conduct of security forces. Examples abound where companies and governments frame local opposition to a development project as security risks (risks to business rather than social risks (risks to people)). In such cases, the crisis is framed primarily in terms of the need to protect the firm’s assets and operations in the short term, rather than the need to acquire and maintain social license over the long-term.Footnote 92
The salience logic does little to resolve this problem, because risks to people cannot be equated to cost-allocation in ordinary accounting terms without flattening out the complexity of the rightsholder using aggregative models to collect data and engage in social impact assessments. These are assessments which, although useful for some rightsholders some of the time, cannot deal with the complexities of context and the radically different rightsholders’ perspectives that may be implicated within that context.
Seen from this perspective, the limitations in the current discourse utilised to identify, prevent and remedy harm become readily apparent. In contrast, harm as depletion does not rely upon the vocabulary of attribution, but instead, upon showing how rights are eroded over time and in some instances, completely erased.
B. The BHR treaty as continuity: De-radicalizing the potency of victims’ rights
What then, are the implications of this analysis for the emergence of a Business and Human Rights treaty? What does it tell us about the grammar utilised to articulate harm emerging BHR law?
Negotiations for a treaty began in 2015, after the UN Human Rights Council established an Open-ended Inter-governmental Working Group ‘to elaborate an international legally binding instrument to regulate the activities of transnational corporations and other business enterprises’ (OEIWG).Footnote 93 In one register, the BHR treaty emerged as a form of organised dissent against injurious corporate practice, a re-invocation of the demand encapsulated in the 1970s resolutions urging a New International Economic Order. Civil society groups wanted international law to ensure Third World states, whose lands and livelihoods faced ongoing depletion through resource extraction, found an avenue to redress this harm.Footnote 94 Yet Ecuador’s Ambassador sought constructive dialogue, balancing attempts at redressing harm against the positive contribution of business in ‘the building of sustainable economies and more just, equitable societies’.Footnote 95
The original draft treaty elements, understood at the time as a proposed ‘victims’ charter’,Footnote 96 centred victims’ rights, noting that states ‘must take any necessary action, including the adoption of legislative and other necessary measures, to prevent human rights violations’ and insisted on avenues for redress resulting in moral and material damages. Finally, it demanded an end to the constraints of the FNC doctrine and territorial limits, asserting that states’ claims to invoke non-performance of corporate obligations extra-territorially should no longer be a bar to criminal prosecution or civil complaints.Footnote 97
Yet as negotiations progressed, these demands were significantly muted. The treaty language has moved from a victim-centred charter towards an allegiance with the demands of transnational corporations and key Western States.Footnote 98 Key developments include: shifting from a treaty focused on transnational corporations to business enterprises, attribution aligning with the UNGPs;Footnote 99 watering down the provisions pertaining to the FNC doctrine;Footnote 100 and embracing the language of human rights abuse, which, although more expansive than the impact language of the UNGPs and the CSDDD, remains wedded to a mediated obligation structure.Footnote 101 The treaty thus illustrates how even enhanced recognition of corporate harm relies on a grammar that separates corporation wrongdoing from a fully justiciable violation, preserving the gap between harm recognition and remedial obligation. As noted by the African civil society group in the 9th session: ‘a draft Treaty which ignores the demands of peoples and communities affected … will have no legitimacy’.Footnote 102
C. Jurisdiction, remedy and the unintelligibility of harm as depletion
Seen from this perspective, harm becomes intelligible only when translated into attributable, temporally contained units. The FNC doctrine displaces harm by implicitly reducing the language of jurisdiction to balancing conveniences between individuals and societies; the concept of ‘impact’ translates harm into discrete units of responsibility rendered distinct from obligations to prevent irremediability; and the BHR treaty institutionalises risk-based recognition without providing remedial closure. Together, these aspects render harm as depletion unintelligible.
The resulting juridical language risks normalising the very harms BHR seeks to eradicate, rendering depletion visible only as adverse impact and contingent upon corporate characterizations of harm. As Riccardo Segate notes in a discussion of the South African position during the BHR treaty negotiations:
Is there a ‘right to be exploited’? Put differently: is there a ‘right not to be prevented from being exploited’? Just to exemplify, in the United Arab Emirates millions of indigent immigrants (from countries such as India, Bangladesh, Sri Lanka, Nepal, Indonesia, Ethiopia, Philippines, and Pakistan) voluntarily decide to be treated as modern slaves, with their passport de facto confiscated for years, in return for ‘jobs’ which temporarily guarantee their families’ survival. But what does ‘voluntarily’ truly mean?Footnote 103
The language utilised to maintain harm’s boundedness as impact in the BHR field risks failing to recognise these deeper harms as harm. ‘Harm as depletion’ becomes an ongoing condition of lived experience and a constraint on the conditions of possibility for rightsholders (now reconstituted as stakeholders), rather than a condition the BHR field is rendering impossible. BHR consultants working with business enterprises are given the authority to determine the severity and likelihood of impact, without assessing the irremediability of depletion. The excess of depletion is rendered visible only to justify the impact being prevented.
D. Embedded solidarity and the limits of reform
What, then, follows from this diagnosis? In this article, we have argued that harm, as understood in the BHR field, can only exist when it is spatially contained, temporally fixed, and rendered attributable to the actual or potential adverse impacts caused, contributed to, or directly linked to a business enterprise. As such, harm is constructed through a segregated visibility regime. In the BHR field, it is embodied in doctrines determining when impact occurred and where, and when jurisdiction can be exercised. Through the BHR treaty, the prospective possibility of both these aspects of harm binding business enterprises remains open to reconsideration. Yet as we have shown, treaty negotiations to date suggest a closing of the aperture through which harm is understood, rather than its opening. Harm as depletion remains elusive, structurally excluded.
One obvious retort to the diagnostic we provide here would be that the BHR field needs to be pragmatic. While it may not be possible to render harm as depletion visible, it remains important to ensure any form of harm is directly attributable. Business enterprises should remain accountable to rightsholders, even if they are reconstituted as stakeholders, because a modicum of justice and accountability, however small, is better than none. That despite these limitations, the BHR field is shifting the normative terrain in significant ways, requiring business enterprises to engage with the severity and likelihood of their impacts, and to adjust their conduct accordingly.Footnote 104
The difficulty with this argument is that institutional pragmatism operates not only as a political compromise, but also as an epistemic limitation on the BHR field. It is not simply that pragmatism mediates between multiple perspectives regarding which human rights risks should be prioritised, for whom and when. It is that it assumes the methods, scope and validity of determining the parameters through which those risks are already settled. In privileging practical action, experience and incremental adjustment in accordance with the law as it exists, it avoids sustained engagement with harms that exceed the boundedness of existing modes of liability.Footnote 105
This limits both the conceptual and juridical horizon of BHR. It ensures that how rights are understood, and their protection pursued, is in ways that accord with the interests of those most able to bear the costs of action. In short, pragmatism obscures the operation of power within the BHR field by presuming neutrality in how that power is exercised.
In response to this, embedded solidarity seeks to explain what becomes visible once harm is no longer forced into bounded, attributable legal units. Embedded solidarity is offered here as a condensed conceptual articulation of a broader analytical framework developed in related work, which informs the critique advanced in this article. Embedded solidarity thus names a mode of recognising harm as relational, ongoing and structurally produced, rather than as discrete, attributable impact. It aligns harm with the conditions under which it is lived, rather than the impacts identified for prevention. In so doing, it opens the aperture through which harm is understood, rather than offering a ready-made resolution.
Embedded solidarity emerges as a counterpoint to the existing grammar of harm as understood in the BHR field. It remains attentive to the context in which the business enterprise operates and to its capacity, as a fictional legal person, to circumvent and sanitise its relationship to natural persons. It provides an arc through which to diagnose the sequences that sustain systemic harm. More specifically, it reintroduces the conditions of possibility that harm as impact excludes: temporal and spatial continuity (rather than jurisdictional fragmentation), inter-generational responsibility (rather than isolated event), social reproduction (rather than economic activity) and distributed causality (as opposed to the state/corporate binary).
Solidarity, when embedded, draws from theories of praxis inspired by jurists aligned with Third World Approaches to International Law.Footnote 106 Hence, ‘solidarity’ is understood here as a political act that extends and reorients the epistemic horizon of the BHR field. Yet that political act is grounded in a philosophical commitment to recognizing that truth is always contingent, and what exists remains open to material contestation.Footnote 107 Rai argues for harm as depletion itself to become measurable and quantifiable. She suggests a framework for harm which centres depletion of social reproduction (DSR) as the ‘difference between the resource outflows used up in the provision of social reproductive work and resource inflows that go into maintaining the current stock of resources available to those engaged in this work’.Footnote 108 Centring DSR provides one avenue towards re-thinking impact in the BHR field and acting in solidarity with rightsholders. Ensuring this is prioritised not only in preventive terms, but in consequential remedial action would secure that solidarity even further.
Yet embedded solidarity further resists the idea that lawyering in BHR can be reduced to a technocratic exercise, or that corporate lawyers can discharge their responsibilities through the application of established frameworks alone. It also resists an exclusive focus on ‘what works’, in the short term. While pragmatism remains appealing in practice, it is often wedded to a politics that largely maintains the status quo, even when it promises incremental change.
In this sense, we join with Ratna Kapur in suggesting that confronting the limits of contemporary human rights discourse requires moving beyond familiar frameworks without abandoning them altogether. What is needed is a mode of inquiry that opens new conceptual space for understanding harm rather than closing it down through premature resolution.Footnote 109 Embedded solidarity does not resolve the limits of the BHR field. It renders them visible. In doing so, it invites a reorientation of legal and institutional practice towards the conditions under which harm is produced, rather than only the impacts through which it is recognised.
VI. Conclusion
Mourning the death of photojournalist Raghu Rai in April 2026, the women-run collective Bhopal Gas Peedith Mahila Stationary Karmchari Sangh noted how Rai’s images ensured ‘Bhopal’s truth could not be buried’.Footnote 110 A steadfast ally of the Bhopal campaign, Rai’s photographs documented what existing law and regulation cannot render visible: that the ‘adverse impact’ to the community was both immediate and slow, both egregious and ongoing, both temporally located in, and temporally dislocated from, the site of the disaster. This is what law renders erasable: harm that continues after legal recognition has ended. Bhopal thus presents a paradox and one which is not easily resolved. The dialectic of suffering rendered invisible by depletion cannot easily be recovered in the language of law, yet nor can it be denied without significant, ongoing consequences.
In memory of Rai, we sought to begin the difficult task of documenting and responding to the concerns this paradox raises. We have shown how spatial and temporal limits structure the legal characterisation of harm, and who is ordinarily permitted to define its contours. In centring harm, as opposed to impact or the existing parameters of contract, tort or human rights law, we showed how the grammar invoked in the BHR field reduces suffering to quantifiable units. In so doing, we sought to show what remains lost in translation when this is undertaken.
By exploring the parameters of the FNC doctrine, as well as the language of impact and its consequences, we began to detail some of the boundaries of the BHR field. We interrogated both how these boundaries are set, and for whom they are put in place. We argued that harms, as discrete units of quantifiable accountability, rendered the scale, scope and irremediability of the damage done to the women of Bhopal at once too great to be encapsulated and too remote to be seen, legally. In documenting the telling instance of Bhopal, we showed how harm as depletion explains the ongoing non-recognition of social reproductive labour predominantly performed by women and the intergenerational cost of ignoring this labour. Reinscribing the harms of Bhopal on the bodies of women and their children, we further explained how harm as depletion renders an ongoing erosion invisible to law and further entrenches conditions of poverty and inequality.
We do not suggest that there are easy answers to the questions raised by the harms engendered in Bhopal in particular, and in industrial disasters generally. Instead, we have argued that harm as depletion should remain central to any understanding of industrial disaster and the so-called ‘governance gaps’ that need to be explored in response to them. Yet rather than asking whether what needs to be explored are the gaps in law and regulation, we have argued instead for deeper consideration of what the BHR Field considers to be the knowledge and belief systems informing that law and regulation itself. Here, we gestured towards the problems associated with institutional pragmatism in response to harms (now reconstituted as impacts). We argued instead for the BHR Field to move beyond pragmatism and towards praxis—grounded as the latter is, in structural transformation through solidarity. Whereas pragmatism manages harm through existing economic and legal constraints (neatly divided to maintain the status quo), praxis interrogates how those constraints constitute what counts as harm in the first place. The power of this move is to confront power as it moves: to recognise that language matters to what remains recognisable, and that the erasure or illegibility of some harms in legal grammar is always a conscious choice.
The consequences for those willing to engage in this form of inquiry are not easy answers, quick fixes, or neat epistemic resolutions. Yet the BHR field’s chief architect, Professor John Ruggie, championed the UNGPs as a framework for change where it matters most: in the daily lives of people.Footnote 111 Understanding harm as depletion recentres those lives as the legal condition through which legal boundaries are produced, and in so doing, as the site where law’s limits are most visibly exposed.Footnote 112
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