RESEARCH ARTICLE

The question concerning human rights and human rightlessness: disposability

and struggle in the Bhopal gas disaster

Louiza Odysseos
Department of International Relations, University of Sussex, Brighton, UK
(Received 20 October 2014; final version received 15 January 2015)

In the midst of concerns about diminishing political support for human rights,
individuals and groups across the globe continue to invoke them in their
diverse struggles against oppression and injustice. Yet both those concerned
with the future of human rights and those who champion rights activism as
essential to resistance, assume that human rights -- as law, discourse and
practices of rights claiming -- can ameliorate rightlessness. In questioning
this assumption, the article seeks also to reconceptualise rightlessness by
engaging with contemporary discussions of disposability and social
abandonment in an attempt to be attentive to forms of rightlessness co-
emergent with the operations of global capital. Developing a heuristic
analytics of rightlessness, it evaluates the relatively recent attempts to
mobilise human rights as a frame for analysis and action in the campaigns for
justice following the 3 December 1984 gas leak from Union Carbide
Corporation’s (UCC) pesticide manufacturing plant in Bhopal, Madhya
Pradesh, India. Informed by the complex effects of human rights in the
amelioration of rightlessness, the article calls for reconstituting human rights
as an optics of rightlessness.

Keywords: human rights; rightlessness; disposability; struggle; Bhopal gas

disaster

1. The question concerning the relationship of human rights and rightlessness

Despite grave concerns about the diminishing political support to fulfil and protect
human rights across the globe, individuals and groups increasingly invoke human
rights in their diverse struggles against oppression and injustice. Yet both those
concerned with the future of human rights1 and those who champion rights activism as
essential to resistance,2 fail to question the relationship between human rights and
human ‘rightlessness’. Rather than theoretically explored and empirically examined, it
is often assumed that human rights -- as law, discourse and practices of rights
claiming constituted in a ‘symbiotic but tense relationship’ 3 – can ameliorate
rightlessness.
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E-mail: [Link]@[Link]

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A range of varied theorisations of human rights rely on this underlying
assumption that human rights are addressed to, and can address, human rightlessness;
that they are, in a certain sense, the antidote to rightlessness. This assumption holds
for understandings of human rights as entitlements 4 arising from morality or custom,
which have historically informed rights struggles5 and which continue to enable the
codification of human rights in international treaties and domestic constitutional-legal
arrangements. For Charles Beitz this assumption transforms our understanding of
rights from minimalist ‘natural’ rights accruing to all human beings by virtue of their
nature to expansive and historically specific ‘basic requirements of global justice’
within the contemporary global economy.6 In political theory, Morton Winston argues
that the amelioration of rightlessness is the very justification for human rights, 7 while
in sociology Bryan Turner advances a cosmopolitan conception of human rights
aimed at the protection of a vulnerable humanity.8 Critical theorisations of rights
claiming as performative practice that can engender active citizens and revitalise
democracy also share this assumption.9 For contemporary human rights scholarship,
then, rightlessness is ‘a transitional phenomenon that will be resolved with further
entrenchment of human rights’.10 Strikingly, the assumption that rights are able to
ameliorate rightlessness appears equally central to those rare accounts informed by
the close interconnection of rights and rightlessness, such as Upendra Baxi’s, who
forewarns that ‘narratives of human rights are inadequate, even misleading, without
companion narratives of the production of human rightlessness’.11 In discussing the
protection of human rights in India, Baxi attributes human rightlessness to ‘bare acts
of sovereignty that simply refuses to accept certain claims to being human and having
human rights in the first place’.12
What if, this article asks, the relationship between rights and rightlessness is
not one of opposition -- of antidote to poison, or medicine to ailment? And, what if
the conventional attribution of rightlessness to the state and its ‘acts of sovereignty’ is
incomplete? Should we not consider amongst the contemporary sources of
rightlessness the state’s legal attempts to address it and multinational capital’s
treatment of people as disposable? Most worryingly, might processes of claiming and
agitating for human rights occlude the persistence of rightlessness? Provoked by these
questions, the article challenges the assumed opposition between rights and
rightlessness, and seeks in the process to reconceptualise rightlessness itself beyond
the simple denial of rights. Supplementing the historical association of rightlessness

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with statelessness, the article develops a heuristic analytics of rightlessness by
engaging with contemporary discussions of disposability and social abandonment.
The analytics, it argues, enables us to ask how and to what extent the legal
mobilisation and discursive invocation of human rights resists rightlessness
understood in this heuristic manner.
The article, at the same time, seeks to ground such theoretical questioning of
rightlessness, and its relationship to rights, in the relatively recent attempts to mobilise
human rights as a frame for analysis and action in the campaigns for justice following
the 3 December 1984 gas leak from Union Carbide Corporation’s (UCC) pesticide
manufacturing plant in Bhopal, Madhya Pradesh, India.13 An estimated forty tonnes of
highly toxic methyl isocyanate (MIC) and other gases leaked into the atmosphere,
causing the deaths of at least 3,000 residents of the neighbourhoods [bastis] adjacent
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to the plant who could not outrun the toxic clouds. Another estimated 20,000
residents have died in the three decades since, while half a million people – survivors
and the next generation still residing in the vicinity of the abandoned and non-
remediated factory -- continue to suffer from the health impacts of direct gas exposure
and the worsening soil and ground-water contamination.15
Widely acknowledged as the world’s gravest industrial catastrophe, and ‘the
most significant recent example of United States industry injuring foreign victims’, 16
the Bhopal gas disaster has engendered diverse subjects, practices and continuously
evolving modes of struggle in its campaigns for justice. Bhopal survivors, as their
testimonies make clear, have ceaselessly struggled for ‘healthcare justice’, 17 the
improvement of work conditions, and for opportunities and pensions suitable for the
little-understood needs of gas-affected residents.18 Whilst coping with the under-
researched but no less debilitating effects of gas exposure,19 they have fought for
justice. Largely thwarted and unsuccessful legal attempts to hold UCC accountable
for the leak and its devastation have been unfolding, initially led by the Union of India
(UOI) in the US courts and later by the tenacious efforts of local activists who have
fought to revive the case in the Bhopal courts, and whose efforts continue against
Dow Chemical, which purchased UCC in 2001 whilst repudiating all its liabilities in
Bhopal.20
While the multiple forms of struggle and framings of the disaster are beyond
the scope of this article, the analysis here examines the mobilisation of human rights
in the last decade following the 20th anniversary of the gas leak, when NGOs such as

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Amnesty International, with elite reinforcement within India’s legal profession, began
to frame the disaster and its aftermath as the ‘biggest example of human rights
violation in the world’.21 Given the failure to bring UCC to justice through tort law,
such interventions appear to offer beneficial ways forward by making claims for
justice within the legal frameworks and truth discourses of human rights, in which the
state is the primary duty bearer. Employing the analytics of rightlessness it develops
in section two, the article critically evaluates the extent to which turning to human
rights law and discourse enables the amelioration of rightlessness in Bhopal in section
three. Informed by the complex effects of human rights in the amelioration of
rightlessness, the conclusion calls for reconstituting human rights as an optics of
rightlessness.22

2. Towards an analytics of rightlessness

The contemporary plight of stateless populations, refugees, undocumented migrants

or those seeking asylum from multiple forms of persecution ensures that discussions
of rightlessness continue to relate it to the political community’s inability or
unwillingness to fulfil the ‘right to have rights’, 23 following Hannah Arendt’s
articulations of this moral right ‘to belong to a political space’ that makes possible
claims to subsequent constitutional rights and entitlements. 24 Attributing rightlessness
to statelessness endures in studies of the denial of rights to non-citizens or the
emergence of human rights in place of those guaranteed by political community.25
In the context of human rights expansion and continued rights claiming in on-
going struggles against dispossession and oppression, this article calls for greater
attention to forms of rightlessness co-emergent with the operations of global capital.
The neoliberal governing economic paradigm -- enabled by discursive constructs ‘of a
world governed by wise and efficient market forces, by invisible hands that
effectively allocated profits and calibrated prices, wages…’26 -- has entailed ‘market-
conforming state-crafting’27 and has resulted in new legal-constitutional
arrangements,28 which inflect in specific ways the pre-existing, colonial, forms of
harm, abandonment and disposability, astutely captured by scholars of contemporary
coloniality.29 Seeking to expand our understanding of rightlessness is not a rejection
of the importance of statelessness but, rather, a call to pluralise rightlessness’s
meanings, locate its sources in the structural inequalities of market liberalisation and

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the very functioning of the law, and better recognise its many local sites. In this task,
the article engages with recent discussions of ‘social death’, ‘abandonment’ and,
significantly, ‘disposability’ in order to articulate a heuristic analytics of rightlessness.
In linking rightlessness to contemporary forms of socio-economic exclusion
and destitution, Lisa-Marie Cacho provides a compelling reading of neoliberal modes
of differentiation and exclusion within the racialised imaginaries of US society, as
exemplified in the aftermath of Hurricane Katrina, and in practices of countering
terrorism and ‘illegal’ migration. While Cacho sustains the link between racialised
rightlessness and the denial of ‘the right to have rights’ by/in a political community,
her analyses of the ways in which ‘unprotectable’ citizens become criminalised by the
state and its laws allow us to connect rightlessness to uses of the law to exclude
historically specific, internal and external ‘others’ within political community. 30 This
destitution through the law, then, forms the first element of our analytics of
rightlessness.
Joao Biehl too charts the phenomenon of ‘social abandonment’ to neoliberal
forms of governing, which individualise and differentiate according to groups’ and
individuals’ productive value and, hence, negate the societal, communal and familial
worlds of sociability within, amongst and towards ‘superfluous’ populations in Brazil.
In addition to explicit neglect, Biehl shows abandonment to involve a host of medico-
social interventions and other attempts at regularization by civil society, provincial
and federal state agencies, which reinforce and enable the neglect of those considered
superfluous. 31 The idea that abandonment requires systematic ‘work’ recalls Veena
Das’s 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’. 32 This active entrenchment of
suffering by the social order forms the second element of an analytics of rightlessness.
These scholarly interventions highlight the rendering of certain others as
politically ‘non-pertinent’ to the objectives articulated for the welfare and
management of the population as a whole and, thus, as unworthy of ethical care. 33
Such accounts make clear that modern governmental rationality has abandonment
‘always already inscribed into it’,34 making marginalisation and disposability ‘not
only possible but ordinary’.35 What does it mean to be politically non-pertinent,
however? With Cacho, we might trace non-pertinence to processes of differentiation
and exclusion within global, but locally manifested, modes of governing that render

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parts of the population ‘disposable’, in the sense of becoming ‘ineligible for
personhood’.36 This form of ‘social death’
not only defines who does not matter, it also makes mattering meaningful.
For different reasons, undocumented immigrants, the racialized poor of the
global South, and criminalized U.S. residents of color in both inner cities and
rural areas are populations who “never achieve, in the eyes of others, the
status of ‘living’”.37

Although the phrase ‘ineligibility for personhood’ highlights the complicity of

the social order/political community in rendering segments of the population
disposable, disaggregating the complex meanings of ‘disposability’ better informs our
analysis of contemporary rightlessness. According to Ranjana Khanna, the adjective
‘disposable’ carries within it two distinct ‘references to excess’: in the sense of
‘disposable camera or disposable diaper,’ excess denotes any such thing that is
intended for a limited number or period of use ‘at which point it is treated as
excessive or as waste matter’.38 This ‘greater unity of production, consumption, and
excretion’ signals that ‘the disposability of workers’ is not just an ideological
construct but, rather, constitutive of capitalist social relations.39 In another sense,
‘disposable’ refers to one’s ‘disposable income or disposable assets’, which denotes
‘something…in excess of notions such as need, necessity, or requirement’.40 Both
senses of ‘limited use, then waste’ and ‘in excess of necessity’ are predicated on the
disposable object or subject being available for use. 41 The capturing of human beings
as a (disposable) available resource [Bestand], explored by Martin Heidegger as an
epochal transformation specific to modernity’s objectifying forms of relationality, 42
forms the third element of our analytic of rightlessness.
The verb ‘to dispose’ too denotes excess but, upon reflection, also bears strong
connections to governing and the sovereign exercise of power. To ‘dis-pose’ recalls
‘…a laying down of something…a disposition suggesting…a suitable placing and
enframing of things and words’.43 Placing and arranging the available (and
disposable) subjects invokes Foucault’s understanding of ‘government’ as a form of
directing and regulating conduct focused on discerning and effecting the ‘right
disposition of things’ to achieve socio-economic objectives, rather than as restricted to
apparati of the state.44 Articulating objectives about the population entails
distinguishing between the pertinent and the non-pertinent, expendable, parts of the
population. At the same time, ‘to dis-pose’ highlights ‘an exertion of power by the
disposer…in a decision to exercise a control’; this is best understood in the ‘sovereign

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commandment’ which decides on the specific disposition (arranging, use) and
disposal (use, ‘discarding of’) of the available-disposable. 45 This two-fold exercise of
governmental and sovereign power for organizing and enabling disposability forms
the fourth element in our analytics of rightlessness.
Formulating an analytics around questions of legal exclusion, facilitation of
suffering by the social order itself, the capturing of people as disposable resources and
the exercise of power in the enablement of disposability acknowledges, at a minimum,
that rightlessness far exceeds the tragedies of statelessness. Importantly, it highlights
the ‘international’ processes of becoming- and keeping-rightless in the contemporary
‘life-times of disposability’.46 Rather than assume that human rights are able to rectify
rightlessness, the analytics encourages a more sober assessment of the possibilities for
amelioration through human rights, which the remainder of the article examines in the
complex turn to human rights in the Bhopal campaigns for justice.

3. Grounding rightlessness in the multiple Bhopal disasters

Offering a necessarily fragmentary discussion of the turn to human rights law and
discourse in campaigns for justice in Bhopal, this section mobilises the elements of
the analytics of rightlessness developed above in order to evaluate the potential
contributions and risks of human rights’ ability to resist rightlessness.

3.1 Contesting the legal production of rightlessness

Reflecting on the incontestable failure of the law, and litigation as a strategy for
obtaining justice for the Bhopal survivors, the former Chief Justice of India J.S.
Verma called Bhopal ‘an egregious violation of human rights of thousands of
people’.47 Preceding this influential pronouncement, an investigative report by
Amnesty International had also called Bhopal – the gas leak and its legal and political
aftermath – ‘a human tragedy and a tragedy for human rights’ at its twentieth
anniversary in 2004.48 Indeed, in the case of Bhopal, the ‘law’ – legislation, litigation,
legal doctrine and processes of adjudication – played a central role in entrenching
rightlessness in the heuristic sense explored above. The Bhopal Act of 1985
designating the UOI as the sole legal representative of the Bhopal gas-affected
population, the adversarial legal framing of the disaster which de-prioritised much-

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needed compensation of survivors,49 the failed attempts to legally pursue UCC in the
US courts,50 the 1989 Indian Supreme Court settlement now viewed as a ‘miscarriage
of justice’,51 as well as the continuing, obstacle-ridden, efforts to bring UCC to justice
in the Madhya Pradesh courts in the decades since, 52 have all received critical
attention, leading scholars, including those involved in the various attempts to obtain
justice, to speak of ‘legal torpor’.53 Two striking, rather than exhaustive, examples
illuminate the forms of rightlessness perpetuated though the law.
Bridget Hanna’s ethnography maps the closure of participation, indeed, the
exclusion from the legal struggle for justice, following the Bhopal Act (1985), which
adopted the parens patriae principle in order to enable the state ‘to pursue mass
disaster litigation as a victim surrogate before US judicial fora’.54 In one sense,
invoking parens patriae was technical decision that allowed India to pursue UCC,
which would otherwise have been outside its jurisdiction. Moreover, it morally
recognized that ‘most of the gas victims did not have the resources or even the
language (in this case, English) necessary to fight the legal battle for themselves’ and
was hence intended to officially represent and protect the Bhopal survivors. 55 India’s
legal response to the disaster, however, cast survivors as ‘“juridically incompetent”, a
status usually reserved for the very young or the mentally ill’, which inadvertently
‘robbed them of their legal right to pursue Union Carbide individually while
technically establishing their right to be provided for, and advocated for, by the
government’.56 Hence, in legislating for their protection, representation and provision
of care, the state rendered Bhopal survivors voiceless in legal fora and processes of
justice: ‘the government’s rhetorical monopolization of the poverty and acute
suffering of the survivors became a way to limit their rights by declaring them non sui
juris (without the legal capacity to act for themselves)’.57 As Sheela Thakur explains
‘we felt like beggars on the street. We forgot we were asking for our rights as
citizen’s [sic] of a free country’. 58
A second example, drawn from the administrative procedures for adjudicating
the thousands of compensation claims following the 1989 Settlement, also illustrates
the perpetuation of legal exclusion and destitution. The procedures established about
who could apply for, and receive, compensation required stringent documentation of
deaths and injuries. Because ‘the government has legitimized only the documented
and registered individual deaths, a process which required autopsy and registration
with the police’,59 many survivors were prohibited from being able to claim even the

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negligible sums of compensation for lives lost ($2,000) and for injuries ($500). Many
impoverished residents of the areas adjoining the pesticide factory were recent
internal migrants to Bhopal or itinerant, not ‘carrying identifying documents…and
would not have been accounted for in a census’. 60 Moreover, the immediate decisions
of the Madhya Pradesh and federal authorities to cremate or bury victims en masse,
with the Indian Army transporting bodies to forests and rivers as far as the Narmada,
left survivors and families of those who perished without the necessary death
registration documents required for claiming compensation.61
And yet the law remains the site in which local and international activists
continue to locate the possibility of attributing responsibility for the disaster,
obtaining meaningful reparations, and ensuring remediation of the life-threatening
environmental conditions caused by the operation and abandonment of the plant. 62
NGO and activist appeals to human rights as a more progressive and universal legal
framework appear to offer renewed possibilities for framing the disaster, ameliorating
rightlessness and achieving justice in Bhopal. How do human rights contest the
exclusions and deprivations created in the legal responses and procedural
arrangements to the disaster, as articulated in the first element of our analytics of
rightlessness?
Two arguments have been put forward in this regard. The first proposes
human rights as a moral and practical yardstick for judging the integrity of the
domestic legal system. International human rights frameworks provide a way to assess
state commitment to human rights through intergovernmental mechanisms such as the
Universal Periodic Review or by exerting pressure and encouraging enhanced
enforcement and improvements to constitutions and National Human Rights
Institutions.63 In much the same vein, human rights arguably can provide a standard
for evaluating the integrity and responsibility of the domestic legal response to Bhopal
in light of the continued injustices suffered by survivors. Justice Verma urged, for
instance, that India’s state and legal profession must ask, ‘what were the remedies to
which they [Bhopalis] were entitled at the time of the disaster and identify the
violation of human rights’.64 As a site and a framework for assessing the impact of
local, legal arrangements on the entrenchment of rightlessness, human rights reopen
these forms of exclusion to reconsideration and demand, if not always ensure, their
reform.

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A second argument proposes human rights law as a better alternative to tort
law, which has served as the traditional legal avenue for pursuing justice against
corporations,
specifically the law of ‘negligence’ or ‘delict’, the fundamental objectives of
which are to (i) provide a level of compensation to a victim which as much as
possible reinstates the victim in the position that he or she would have been
in if the negligence had not occurred and (ii) act as a deterrent against future
wrongdoing by the perpetrator and others generally. 65

As noted above, redress through tort law was pursued by the Indian state in the US
courts but was thwarted when the Second District Court of New York accepted
UCC’s forum non conveniens claims regarding the ‘availability of an adequate
alternative forum’ in India.66
Patently preferable to tort litigation which, in the case of mass chemical
disasters, tends to become ‘trapped in a legal paralysis and conceptual vacuum’,67
scholars have also argued that human rights law offers a higher normative standard
compared to tort law. The latter reduces the ‘significance of the alleged misconduct
and harm’ because it focuses on, and articulates charges in terms of, negligence. 68 On
the contrary, Ratna Kapur claims with Bhopal disaster in mind, human rights facilitate
more ‘systemic’ interventions because they stand at a distance from the market ethos.
Human rights law and discourse do not accept, as tort law does, a certain level of risk
to human life within economic activity, which renders tort law ‘ill-equipped to deal
with mass disasters resulting from ultrahazardous activities’69 of MNCs with grave
potential to cause serious human harm, especially in developing countries where
‘regulatory arbitrage’70 incentivises corporations to ‘export [of] hazard’ 71 through
inferior factory design and lax operational standards of worker and public protection.
This is a case in point in Bhopal where ‘the technological preconditions for a major
accident were embedded in the design of the Bhopal plant, which allowed for bulk
storage of MIC in large, underground tanks in an environment that used manual
noncomputerized control systems’.72Moreover, again unlike tort law, human rights
escape the ‘market model’ based on an ‘ethic of economic efficiency’, which renders
judgements based on tort law as ‘mere palliatives’, however significant to those
seeking justice.73 This potentiality of human rights for meaningful ‘systemic’
interventions, however, requires first a perspectival shift away from having to prove
intentionality for violations towards accepting impact assessment of the harm caused;
and second, that the right to life, on which impact will be assessed, be grasped within

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broader economic and social conditions rather than in the ‘more restrictive
interpretation accorded to the right in the American context’.74
Both arguments for the ability of human rights to contest the perpetuation of
rightlessness through the law come up against long-discussed limits of human rights
as well as recent trends in their evolution and embedding that constraint their
effectiveness. A brief recounting illuminates how these concerns inflect the turn to
human rights in Bhopal. First, the limited justiciability arising from the progressive
realisation of economic and social rights delimits their ability to act as an evaluative
yardstick for the legal response to the disaster; 75 it also problematizes a systemic
assessment of MNC practices based on the right to life fully embedded within its
economic and social dimensions as advocated by Kapur. Second, the ‘complex
concert’ between states in need of investment and technological innovation and
MNCs, which characterised India’s relationship with UCC and later with Dow
Chemical, has arguably weakened states’ ability to uphold human rights. 76 Third, and
related, the development of a ‘new global regime of economic rights’ of multinational
capital in the emerging neoliberal constitutionalism not only obstructs, but regresses,
the embedding of global human rights and its ability to contest the market model.77

3.2 Indicting the facilitation of suffering by the social order

The moral superiority of human rights is also implicitly invoked in the castigation of
the social order – state and society -- for its permissive and active role in creating and
entrenching suffering in Bhopal. How and to what extent do human rights enable an
indictment of the social order in the second element of the analytics?
The continued centrality of the state as the primary duty bearer within human
rights discourses and law illuminates, not only corporate crime and negligence, but the
Indian state’s grave responsibility for creating and failing to alleviate survivors’
suffering. The complicity of the state before the disaster centres on its laxity in
regulating appropriate design and safe operational practices by UCC in its search for
foreign direct investments and technology transfers. The significance of
technologically advanced industrialisation was articulated as early as 1948 and
created a permissive environment78 in which UCC designed and operated the Bhopal
plant: ‘the Indian government repeatedly violated it’s own laws — from FERA

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[Foreign Exchange Regulation Act], to zoning restrictions, to ensuring comparable
safety standards — in their dealings with UCC’. 79 Both the national and state
authorities ignored explicit warnings raised by plant workers, local citizens, and
journalists like Rajkumar Keswani, who repeatedly raised the alarm about the dangers
posed by UCIL’s factory in articles in Rapat Weekly as early as 1981.80 Design and
operational failures in the MIC unit leading to the death of Mohammed Ashraf in
1981 and a substantial fire in ‘the alpha-naphthol unit in 1982’, also failed to convince
the authorities to take ‘any regulatory action’.81 Far from heeding such signs, local
‘politicians looking for votes happily granted pattas [rights to the land] to illegal
residents next to the factory, never informing them that it posed an immense hazard’.82
In addition to the state, authoritative institutions of society, such as the law
and medicine failed to provide relief, remediation, health and justice to the survivors
of Bhopal, further entrenching their rightlessness. While what Bhopal ‘was asking for
was an innovative and radical bureaucracy’ 83 the ‘scientific, legal and administrative
structures of modern society’ in India, including those professions and institutions
charged with survivors’ care, masked ‘from the powerless the manner in which their
suffering may have been manufactured and distributed by an unjust society’, shifting
responsibility from themselves to the gas-affected residents.84 At the same time,
discourses of development in India fixated on ‘the slum as pathology and excess’, 85
renewing forms of repression in the name of law and order and translating the rights
of survivors rearticulated in the Bhopal Act as charity towards the ‘undeserving
poor’.86
How can a social order ‘allow such a disposal of the other, without indicting
itself’87 and how might rights problematize the legitimacy of social institutions and
attitudes, and disrupt collective modes of ethico-political negligence that lead to
disposability and rightlessness? Can human rights, this article asks, function as an
‘optics’, a sort of mirror through which the social order takes a hard look at its own
processes of sustaining rightlessness? Stories and life narratives play an important
role in this potentiality of human rights as an optics of rightlessness. Richard Rorty,
for example, long held the view that sentimental education of publics through stories
of suffering were more likely to succeed in reforming social institutions and attitudes
at home and abroad than condescending judgements of societies’ irrationality or
backwardness.88 In Bhopal, projects of collecting and reflecting on survivor-activists’
oral histories aimed to generate discussion on future themes and directions of the

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movements89 but may also function as an optics that ‘disrupts the normal flow of
social life’ while at the same time ‘creat[ing] windows on normality’ that reveal the
‘political and social processes’ of rightlessness:90 ‘Bhopal reveals the truth of the
system as it has revealed it to me’, says a Bhopali activist. 91 Finally, personal
narrations of human rights abuses are seen as positively enhancing ‘public
mobilisations of concern’ and enabling narrators to transcend their private worlds of
suffering to speak out as political subjects against injustice. 92 In other words, this not
only facilitates the castigation of the social order but also works to resubjectivise
those constructed as disposable resources by state, society and capital, as we explore
below in the third element of the analytics.

3.3 Contesting constructions of citizens as disposable resources through

resubjectivisation

Analyses of the subjectivising effects of human rights discourses and practices of

rights claiming investigate the ways in which human rights contest the subjectification
of disposable subjects by state, society and capital, aiding them in challenging, and to
some extent ‘unworking’, their voicelessness within the law, the active creation of
their suffering within the social order and their constructed disposability. Truth
discourses of human rights convey the ‘“vital” character of living human beings’ as
articulated by ‘an array of authorities considered competent to speak that truth’. 93
They identify human rights-bearers as subjects of equal moral worth and dignity, and
as such enable those deemed disposable by the social order to work to recover new
ways to be. In other words, human rights discursively intervene in the everyday
suffering of Bhopal survivors and rearticulate this ‘accidental and unfortunate’
suffering into both morally abhorrent and politically actionable grievances. Human
rights allow Bhopal survivors -- as legitimate political subjects of grievance with
identifiable paths for attributing responsibility to duty bearers for rights protection,
namely, states, -- to make demands of the state in a register that is audible
internationally.
Moreover, this political subject is also a legal subject, whose rights states have
undertaken to protect and guarantee through ratification of international covenants.94
Importantly for Bhopal survivors, human rights claiming practices reawaken a subject
of entitlement within a subject constituted by its very lack: of fulfilled rights, of

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healthcare justice, of value. Emphasising the entitlement of human beings predicated
on the moral value of human life aims to resist the devaluation of some life, best
captured by the retort of a Dow Chemical spokesman’s to US activists fasting in
solidarity with Bhopal survivors: ‘$500 plenty for an Indian’. 95 Hence, discourses of
human rights and practices of rights claiming remind the international and domestic
social order that ‘…life that no longer has any value for society is hardly synonymous
with a life that no longer has any value for the person living it’.96
Acknowledging the potentiality of countering the subjectivisation of Bhopalis
as disposable cannot ignore the complex relationship of rights to power, which raises
important concerns. First, local mobilisations of rights are understood to rearticulate
local suffering into globally audible articulations of rights claims and it is this
internalisation of rights that resubjectivises them as dissenting subjects. 97 At the heart
of such local mobilisations productive of rights-holding subjectivities, however,
remains a kernel of the liberal autonomous individual – the ontological assumptions
of a morally equal, dignified and autonomous rights-holder.98 This raises the concern,
among others, that assuming moral worthiness and dignity as innate, risks occluding
both the systematic processes of rendering people disposable that entrench
rightlessness 99 and also their pre-existing struggles for justice.
Second, and related, assuming a legally entitled subject of rights may similarly
obscure that what is needed to make this entitlement concrete and to disrupt the
expendability of Bhopal survivors is the pluralisation and intensification, through
rights, of their long-standing and multifarious struggle for justice and everyday
subsistence, health, and environmental safety. Put otherwise, assuming rights as the
legal solution, views human rights as a ‘practice, in which politics is understood as
law’, a conception that risks ‘beguiling socially disadvantaged groups with the false
promise of a legal remedy for their grievances, if only they articulate them as
rights’,100 and may be in tension with local visions of rights inextricable from
struggles for social and distributive justice. 101 In part, this risk hinges on the extent to
which subjectivisation emerges from, and further shapes, locally grounded
mobilisations of rights for struggle, in the absence of which, reframing local problems
through rights may ‘displace alternative visions of social justice that are less
individualistic and more focused on communities and responsibilities’. 102 This
questions whether elite and NGO analyses of Bhopal in terms of human rights work to

14
displace or support preexisting local visions and paths of justice, although the two are
not mutually exclusive.
A third, and again related, concern surrounds the impact of privileging
adjudicatory and litigation processes of human rights as a site for activism. 103 The
location of human rights in such processes potentially narrows ‘what types of action
may be imagined’ by Bhopal activists.104 In other words, in providing the
‘infrastructural’ and discursive parameters in which survivors may resist or strategic
litigation may be pursued, human rights tends to reduce problems into rights
violations and, partly, constrains and channels subjects’ practices of dissent through
the law.105
Finally, returning to the liberal subject of rights, does the compatibility of
human rights law, ‘particularly that part that emphasizes civil and political rights,’ and
at least the partial coherence of rights-holding subjectivities with neoliberalism,
weaken the radical contestations of lived experiences of disposability which human
rights are able to engender?106 Yet, as scholars have argued, when social movements
mobilise human rights for social justice and against diverse operations of power they
refute this compatibility.107 In the context of Bhopal, the struggle ‘makes demands of
the law, but also it calls for something more – something that is difficult to articulate’
which is a questioning of the histories of disposability against the poorest citizens by
state, society and capital.108

3.4 Challenging the exercise of power

The final element of the analytics of rightlessness focuses on the ways in which
human rights challenge the operations of governmental and sovereign power. Taking
the latter first, the state-centred mechanisms of attribution of responsibility for
violations are both a drawback and a strength of the international human rights
regime. In Bhopal, where direct attribution and redress for human rights abuses
against corporations remains an aspiration, 109 the human rights legal framework
determines ‘what [state] obligations under international law have been breached and
what protective standards failed’.110 The mechanisms of attributing responsibility to
states, and the symbolic castigation that this enables, are especially significant for the

15
campaigns for justice in Bhopal, where the state failed to regulate UCC’s operations
and to protect the lives and health of citizens.
Indeed, the broader difficulties with pursuing private actors directly for
violations have led to the reassertion of state attribution mechanisms in the recent
United Nations ‘Protect, Respect and Remedy’ Framework, which articulates a strong
duty for states to protect human rights and pursue corporations in the event of
violations by business.111 Emphasising state attribution in the invocation of human
rights in Bhopal appears to have cemented existing local critiques of the Indian state
amongst activists: ‘My priority at that time was to punish the offenders and get
compensation. Now I would also put more emphasis on the Government because it is
as much their fault that all this has come this far. It is the Government’s responsibility
if they permit such factories…’112
Nevertheless, serious concerns question the faith placed on the state-centred
mechanisms of attribution. Significantly, the state centric vocabularies of human
rights fail to grasp the ‘state like but non-state’ agency of multinational
corporations.113 Human rights organisations increasingly recognise this and have long
urged creating direct mechanisms for attribution for corporations.114 Moreover, the
state-centricity of human rights frameworks may render them blind to the diffusion of
corporate material and normative power within state institutions and bureaucracies,
brought about by neoliberal socio-economic reforms and a broader ‘generalisation of
the economic form of the market’ across many social domains, which sets market
truth as the yardstick by which to judge policy and bureaucratic activity. 115 Moreover,
rights may fail to grasp and to respond to the ways in which neoliberalising states are
becoming hybridised with exigencies and interests of business. 116 Post-independence
India’s ‘fear of exploitation’ gradually transformed into a fear of ‘exclusion’ from the
international order, affecting the state’s perceptions of its need and search for
multinational capital, technology and international legitimation.117
Relatedly, human rights obligations for business remain voluntary. The UN
‘Protect, Respect and Remedy’ Framework articulates a responsibility, rather than a
legal duty, for business to ‘avoid infringing on the human rights of others…’ 118 Such
voluntariness relax the ethical obligations of corporations, and do little to pierce the
‘corporate veil’, permitting multinationals like Dow Chemical to denounce
responsibility for the liabilities of subsidiaries, as in its 2001 acquisition of UCC. 119
This assertion of the corporate veil enables Dow Chemical to maintain that ‘efforts to

16
directly involve [Dow] in legal proceedings in India concerning the 1984 Bhopal
tragedy are without merit’, which it recently claimed in response to a third summons
to present UCC to the courts issued by the Chief Judicial Magistrate of Bhopal in
August 2014.120 In other words, human rights’ state-centric attribution and voluntary
standards for corporate conduct fail to challenge the practices of multinational capital
to evade responsibility for the extreme human suffering it produces.
In terms of contesting governmental power, it is hoped that human rights can
help us see ‘individual biographies of human and social suffering’ and convert them
‘into social texts problematizing governance’.121 Does problematizing governing by
translating the suffering of Bhopal survivors into human rights violations, however,
not at the same time colonise that suffering, potentially leading to the emergence of a
‘human rights governmentality’ which articulates objectives, collates data, monitors
observance and governs the conduct of states and citizens?122 Much like the ‘imperial
techniques of emergent green governmentality’ in India after Bhopal, which aimed to
operationalize the ‘lessons of Bhopal’ for safety improvements in industrial activity, a
human rights governmentality too may ‘construct a future regime of law reform…in a
parasitical relation to’ and doing ‘little to ameliorate the plight of the Bhopal-
violated’.123

4. Conclusion: from amelioration to an optics for rightlessness?

This article questioned the assumption that human rights -- as law, discourse and
practices of rights claiming – can ameliorate rightlessness. Developing a heuristic
analytics of rightlessness as intimately connected to processes of abandonment and
disposability, it examined in the context of the campaigns for justice in Bhopal the
potential and risks of pursuing the amelioration of rightlessness, understood
heuristically, through human rights. The concerns with human rights’ mobilisation
and the excessive focus on amelioration itself leads us to shift our hopes for human
rights towards their potentiality to act as an optics of rightlessness that reveal the
processes through which the law, the social order, state power and modern
governmental rationalities entrench rightlessness as disposability. Rather than
assuring a transitional path away from rightlessness, rights as an optics of
rightlessness illuminate, and potentially disrupt, the practices of state, society and
capital that treat humans as potential waste after use, transforming availability into

17
disposability. This potential of rights to disclose the entrenchment of rightlessness
emerged in each of the analyses above: as an optics of the domestic legal system’s
and international tort law’s responsibility for the injustices perpetuated on the Bhopal
survivors since 1984; as an optics of the role of the social order in the processes of
keeping-rightless those people it regards and treats as waste and in ‘excess of
necessity’; and as disclosure of the potentiality of aiding survivorsown contestation of
these disposable subjectivities; and as a view into the work abandonment by sovereign
and governmental power. Mirroring Das’s hope for the anthropological gaze, might
we reconstitute human rights as an optics -- ‘forming one body, providing voice, and
touching victims, so that their pain may be experienced in other bodies as well’ 124 -- as
yet one other means for Bhopal survivors to teach us what struggle against and within
rightlessness means.

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Acknowledgments

I am grateful to the three anonymous referees, as well as Lara Coleman, Jane Cowan,
Synne Dyvik, Anna Selmeczi, Andreja Zevnik and the participants at the 2013
European Workshops in International Studies in Tartu, Estonia and at the 2014
Critical Legal Conference in Brighton for their critical engagement with earlier
versions of the paper.

Biographical Note

Louiza Odysseos is a Senior Lecturer in International Relations at the University of

Sussex. She is the author of The Subject of Coexistence: Otherness in International
Relations (University of Minnesotta Press, 2007) and the co-editor of Gendering the
International (Palgrave Macmillan, 2002) and The International Political Theory of
Carl Schmitt (Routledge, 2007). She is currently completing a manuscript entitled
The Reign of Rights.

Notes

23
1
See, Hopgood, The Endtimes of Human Rights.
2
Brysk, Speaking Rights to Power.
3
Levitt and Merry, “Vernacularization on the Ground,” 460.
4
For instance, Milne, Human Rights and Human Diversity.
5
Fraser, “Becoming Human.”
6
Beitz, “What Human Rights Mean,” 44.
7
Winston, “Human Rights as Moral Rebellion,” 279.
8
Turner, Vulnerability and Human Rights.
9
Zivi, Making Rights Claims.
10
Gundogdu, “Rightlessness in an Age of Rights,” 6.
11
Baxi, “Protection of Human Rights,” 385–386.
12
Ibid., 386.
13
The plant was run by Union Carbide India Limited (UCIL) a majority owned subsidiary (at
50.9%) of the US multinational Union Carbide Corporation (UCC).
14
Amnesty International contests these low figures and places the immediate death toll at 10,000,
see Clouds of Injustice; The International Campaign for Bhopal, following research amongst the
municipal workers who collected the bodies, estimates between 8-15,000 died within days of
the gas leak, see “The Death Toll.”
15
Greenpeace International, The Bhopal Legacy.
16
Cummings, “International Mass Tort Litigation,” 111.
17
Baxi, “Writing about Impunity,” 33.
18
Bhopal Survivors Movement Study Group, Bhopal Survivors Speak.
19
Edwards, Sarangi, and Sinha, The Bhopal Marathon, 68.
20
Ibid., 45.
21
Quote by Verma, “Bhopal Disaster”; see also, Amnesty International, Clouds of Injustice.
22
See the extensive analysis in Odysseos, The Subject of Coexistence.
23
Arendt, The Origins of Totalitarianism, 297.
24
Benhabib, Transformations of Citizenship, 16.
25
Wilke and Willis, “The Exploitation of Vulnerability”; Pérez, “Human Rights and the
Rightless.”
26
Ogle, “State Rights against Private Capital,” 226.
27
Wacquant, “Constructing Neoliberalism,” 1.
28
Cf. the essays on neoliberal constitutionalism, Gill and Cutler, New Constitutionalism and
World Order.
29
See Maldonado-Torres, “On the Coloniality of Being.”
30
Cacho, Social Death.
31
Biehl, Vita, 381.
32
Das, Critical Events, 138; emphasis in original.
33
Foucault, Security, Territory, Population, 42.
34
Selmeczi, “‘… We Are Being Left to Burn,’” 520.
35
Biehl, Vita, 23.
36
Cacho, Social Death, 6.
37
Ibid., 6–7.
38
“Disposability,” 184.
39
Yates, “The Human-As-Waste,” 1682; See also, Wright, Disposable Women; Bauman, Wasted
Lives.
40
Khanna, “Disposability,” 184.
41
This denotes an existential “readiness to hand” or availability of beings, see Heidegger, Being
and Time.
42
Heidegger, “The Question Concerning Technology.”
43
Khanna, “Disposability,” 185.
44
Foucault, “Governmentality,” 208.
45
Khanna, “Disposability,” 185–186.
46
Tadiar, “Life-Times of Disposability.”
47
National Network of Lawyers for Rights and Justice (India), “Bhopal Gas Leak.”
48
Amnesty International, Clouds of Injustice, 27.
49
Cassels, The Uncertain Promise of Law, 112.
50
Baxi and Dhanda, Valiant Victims and Lethal Litigation.
51
Justice Verma quoted in National Network of Lawyers for Rights and Justice (India), “Bhopal
Gas Leak.”
52
See the account given in Galanter, “Law’s Elusive Promise.”
53
Galanter, “Legal Torpor.”
54
Baxi, “Writing about Impunity,” 36; The Bhopal Act was first challenged by survivors with the
help of Indira Jaising, now Solicitor General of India. “Indira Jaising.”
55
Hanna, “Bhopal,” 495.
56
Ibid.
57
Ibid., 498. At the time, ‘none of the groups of victims that had been formed by then realised the
enormous implications of surrendering vital decision-making powers to the UOI.’ Jaising and
Sathyamala, “Legal Rights and Wrongs,” 106–107.
58
Sheela Thakur, gas survivor cited in Mukherjee, Surviving Bhopal, 81.
59
Hanna, “Bhopal,” 494.
60
Ibid.
61
Ibid.; International Campaign for Justice in Bhopal, “The Death Toll.”
62
Greenpeace International, The Bhopal Legacy.
63
See Cowan and Billaud, in this issue; Goodman and Pegram, Human Rights, State Compliance,
and Social Change.
64
National Network of Lawyers for Rights and Justice (India), “Bhopal Gas Leak” brackets
added; Amnesty International, Clouds of Injustice, 78.
65
Meeran, “Tort Litigation against Multinational Corporations,” 3.
66
Cummings, “International Mass Tort Litigation”; Darmody, “An Economic Approach to Forum
Non Conveniens Dismissals".
67
Kapur, “From Human Tragedy to Human Rights,” 2.
68
Meeran, “Tort Litigation against Multinational Corporations,” 4.
69
Kapur, “From Human Tragedy to Human Rights,” 3.
70
Fleischer, “Regulatory Arbitrage.”
71
Jones, Corporate Killing, 17; Recall the cynical statement of a senior World Bank employee
that, “the economic logic behind dumping a load of toxic waste in the lowest wage country is
impeccable” Lawrence Summers cited in Mukherjee et al., “Generating Theory,” 152.
72
Shrivastava, Bhopal, 54.
73
Kapur, “From Human Tragedy to Human Rights,” 13–14.
74
Ibid., 4, 33 and 21.
75
Whelan and Donnelly, “The West, Economic and Social Rights,” 915.
76
Deva, Regulating Corporate Human Rights Violations; see also Baxi, “Geographies of
Injustice”; Gonsalves, KALIYUG.
77
Baxi, The Future of Human Rights, 144–156; Gill and Cutler, New Constitutionalism and
World Order.
78
D’Silva, Black Box of Bhopal, 25–26.
79
Hanna, “Bhopal,” 493, brackets added; cf. Everest, Behind the Poison Cloud, 45–64.
80
Khan, “Citizen’s Letter,” 18–19; Keswani, “Bhopal, Sitting on the Edge of a Volcano...,” 14–
15.
81
Hanna, “Bhopal,” 493–494.
82
Ibid., 494.
83
Mukherjee, Surviving Bhopal, 84.
84
Das, Critical Events, 139.
85
Mukherjee, Surviving Bhopal, 84.
86
Hanna, “Bhopal,” 504.
87
Biehl, Vita, 37.
88
Rorty, “Human Rights, Rationality and Sentimentality,” 80.
89
Bhopal Survivors Movement Study Group, Bhopal Survivors Speak.
90
Michael Reich cited in Das, Critical Events, 142.
91
Sadhna Karnik Pradhan’s testimony in Bhopal Survivors Movement Study Group, Bhopal
Survivors Speak, 148.
92
Jolly, “Life/Rights,” 4.
93
Rabinow and Rose, “Biopower Today,” 203.
94
For a broader philosophical treatment, see Rancière, “Who Is the Subject of the Rights of
Man?”
95
Cited in Edwards, Sarangi, and Sinha, The Bhopal Marathon, 104.
96
Biehl, “Ethnography,” 581.
97
Foucault, “The Subject and Power”; Odysseos, “Governing Dissent.”
98
Merry, Human Rights and Gender Violence, 137–8.
99
Khanna, “Indignity,” 258.
100
Young and Perelman, “Rights As Footprints,” 27, 31.
101
See Coleman in this issue.
102
Merry, “Human Rights and Transnational Culture,” 58.
103
This is not to imply that activist practices have become limited to the law. See the careful
accounts of Zavestoski, “Struggle for Justice in Bhopal”; Mukherjee, Surviving Bhopal.
104
Anderson, “Litigation and Activism,” 186.
105
Kennedy, The Dark Sides of Virtue, 9–11; Odysseos, “Governing Dissent,” 447–452.
106
Levitt and Merry, “Vernacularization on the Ground,” 461; Odysseos, “Human Rights,
Liberal Ontogenesis and Freedom,” 754–766. For a contrary perspective, see Selmeczi in this
issue.
107
Stammers, Human Rights and Social Movements; Levitt and Merry, “Vernacularization on the
Ground,” 461.
108
Fortun, Advocacy after Bhopal, 195.
109
Meeran, “Tort Litigation against Multinational Corporations,” 3.
110
Amnesty International, Clouds of Injustice, 27 brackets added.
111
Ruggie, Guiding Principles.
112
Om Wati Bai testimony in Bhopal Survivors Movement Study Group, Bhopal Survivors Speak,
175.
113
Baxi, “Writing about Impunity,” 27.
114
Amnesty International, Clouds of Injustice, 35.
115
Foucault, The Birth of Biopolitics, 29 and 246–7.
116
Estevez, in this issue.
117
Fortun, Advocacy after Bhopal, 148–149.
118
Ruggie, Guiding Principles, 13.
119
See Anderson, “Challenging the Limited Liability of Parent Companies.”
120
Amnesty International, “Dow Chemical Must Comply with New Indian Court Summons.”
121
Baxi, “Protection of Human Rights,” 405.
122
Sokhi-Bulley, “Governing (Through) Rights.”
123
Baxi, “Writing about Impunity,” 35–36.
124
Das, Critical Events, 196.