International Monsanto Tribunal in The Hague
Catherine Le Bris
- Human rights — International environmental law — Advisory opinions
Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.
A. Introduction: an Opinion Tribunal
1 The International Monsanto Tribunal (‘Monsanto Tribunal’ or ‘IMT’) defined itself as ‘an “extraordinary” court born out of the determination of civil society’ (IMT Advisory Opinion, 2017, 9). It was an opinion tribunal rather than an ordinary State court or a court set up by an international organization.
2 This Tribunal was not the first one of its kind. It followed the tradition initiated by the Russell Tribunal and pursued, especially, by the Permanent Peoples’ Tribunal (‘PPT’) or the Policies of the International Monetary Fund and the World Bank Tribunal with which it claimed some form of link (IMT Advisory Opinion, 2017, 9).
3 The suggestion to create this tribunal was made by René Lehnherr, who specializes in new technologies and is a member of the European Civic Forum that brings together about a hundred non-governmental organizations in Europe. A few years ago, René Lehnherr met Colombian farmers who had been invited by the European Civic Forum. These farmers reported that Monsanto had pressured the Colombian State to amend the Agricultural Act in its favour so as to prevent farmers from reusing traditional seeds. As a result, those who did not abide by the law saw their seeds destroyed. Since then, the Colombian Act has been modified, but René Lehnherr has maintained that Monsanto should be tried by an international tribunal. He proposed Marie-Monique Robin, a journalist who directed the documentary ‘Le Monde selon Monsanto’ (‘The World according to Monsanto’), to sponsor this project. With the help in particular of Olivier De Schutter, former Special Rapporteur on the Right to Food, Corinne Lepage, former Minister of the Environment, and Arnaud Apoteker, who has been in charge of numerous Greenpeace campaigns, the project has got underway. Given that no international tribunal had jurisdiction to try Monsanto, the Steering Committee decided to create a new tribunal: a people’s tribunal. In this way, the Monsanto Tribunal Foundation, whose by-laws were adopted on 4 June 2015, set up the Monsanto Tribunal.
4 In practice, the Tribunal was funded by companies active in the production of organic products (in particular Biocoop and Léa Nature), some associations (in particular Greenpeace, Organic Consumers Association, and Le collectif des faucheurs Volontaires d’OGM (genetically modified organisms (‘GMO’) crop destruction campaigners)), and also private individuals through crowdfunding; nevertheless, its major contributor was the German firm Lehmann Natur.
5 The Monsanto Tribunal sat in The Hague from 16 to 18 October 2016. Its function was to provide, through an advisory opinion, a legal assessment of Monsanto’s conduct. This multinational company marketed or is marketing herbicides such as Roundup and Lasso, polychlorinated biphenyls (which are persistent organic pollutants), GMOs, and Agent Orange—the defoliant sprayed by the United States (‘US’) military during the Vietnam War. The Tribunal should have rendered its advisory opinion on 10 December 2016 but owing to heavy workloads, eventually handed it down on 18 April 2017.
6 The Monsanto Tribunal, albeit a people’s tribunal, intended to place itself on an equal footing with ‘real’ international jurisdictions. Furthermore, it took over the functioning patterns of those jurisdictions: its seat was in The Hague, following in the footsteps of the International Criminal Court (ICC) and the International Court of Justice (ICJ); its judges were seasoned jurists and its President, Françoise Tulkens, sat on the European Court of Human Rights (ECtHR). The composition of the Tribunal also reflected some sort of geographical representativeness in line with United Nations (‘UN’) standards (see Art 9 Statute of the International Court of Justice): the judges came from Africa (Dior Fall Sow, Senegal), Europe (Françoise Tulkens, Belgium), Latin America (Jorge Abraham Fernández Souza, Mexico, and Eleonora Lamm, Argentina), and North America (Steven Shrybman, Canada). It was initially foreseen that an Asian judge would also sit on this tribunal, but following their resignation, there was no judge coming from this region.
7 In addition, the Tribunal was committed to observing the pattern of a judicial procedure by announcing that judges would take part in the conduct of the proceedings, highlighting their term of office as judges or, for some lawyers, by wearing court dress during pleadings.
8 In comparison to other techniques more frequently used by civil society such as campaigning or lobbying, the establishment of an opinion tribunal is primarily intended to constitute a collective experience (Garapon, 2001, 65). It is a ‘singular forum of expression’ (Cournil, 2016, 206). Recourse to the pattern of a judicial procedure makes it possible to determine that certain actions are ‘arbitrary’ or, on the contrary, that they are ‘legitimate’ (Bourdieu, 1982, 58), so that a line can be drawn between ‘before’ and ‘after’ the actions in question (Garapon, 2001, 68 and 69), thus marking a turning point in history.
9 The establishment of such a tribunal also reflects a demand from civil society to participate in the interpretation of legal standards. This function is traditionally assigned to the authorities responsible for their application (Pomade, 2009, 312), that is, public authorities and national or international courts. However, by establishing a tribunal, civil society—which is now involved in the development of legal norms—is also indicating its willingness to determine the implications of such norms. Moreover, the interpretation of legal norms is not a neutral exercise at all as it implies a creative dimension. Thus, with regard to the right to food, the Tribunal stated that this right cannot simply be construed as ‘the right to eat or to feed’ but that it also implies the right to be fed ‘healthily and permanently’ as well as the ‘possibility of producing food (for consumption of for marketing) or as the possibility of obtaining and accessing food also in a permanent and sustainable manner’ (IMT Advisory Opinion, 18 April 2017, 22).
10 More generally, the creation of such a tribunal demonstrates legal and judicial empowerment on the part of civil society. This type of legal and judicial engagement goes hand in hand with an awareness of rights: it is because this awareness of rights exists that civil society perceives a situation as a breach of human rights and that by engaging itself, it appropriates the legal language. Yet the awareness of rights is closely linked to intelligibility and legibility of law itself (McCammon and McGrath, 2015). In this regard, it may be considered that law, and more precisely, the adoption of international reference texts such as the Universal Declaration of Human Rights (1948), by establishing and making rights visible, has boosted the appropriation of legal and judicial language by civil society; thus, the law itself harbors the seeds of this kind of people’s tribunal.
B. The Functioning of the International Monsanto Tribunal
1. Jurisdiction and Applicable Law
11 The International Monsanto Tribunal did not have the authority to try this company. Its purpose was to state the law: it did not seek to rule upon a particular dispute but rather it aimed to render an opinion on specific legal issues by means of an ‘advisory opinion’. In this respect, it drew on the ‘methods utilized by the International Court of Justice’ (IMT Advisory Opinion, 2017, 12). The Tribunal's opinion was not legally binding as stated by the Tribunal itself (IMT Advisory Opinion, 2017, 10). The advisory opinions rendered by the ICJ are, of course, not legally binding either but the situation of the Monsanto Tribunal is different from that of the ICJ: coercion remains the prerogative of the State at both international and domestic levels, and civil society such as the Monsanto Tribunal has no power to enforce its own decisions. In this context, an opinion, which is only of an advisory nature, was more appropriate than a binding decision.
12 The Steering Committee that established the Monsanto Tribunal submitted the following six questions to it: did the firm, Monsanto, by its activities, infringe upon the right to a healthy and sustainable environment?; the right to food?; the right to health?; or/and the freedom of scientific research?; did Monsanto commit war crimes?; or crimes of ecocide, namely ecological crimes?
13 These questions sometimes have a criminal dimension (eg, war crimes), sometimes a civil dimension (eg, violations of human rights); in this regard, the Monsanto Tribunal is of a mixed nature.
14 The Tribunal’s Advisory Opinion was based on ‘legal considerations, grounded in international human rights law and international humanitarian law’ (IMT Advisory Opinion, 2017, 10). The selectivity of the international texts applied by the Tribunal was in line with its status as an opinion tribunal and its ideological approach. This à la carte international law led the Tribunal to conceal instruments of an economic nature and thus to delineate a certain representation of the international legal order, namely a representation centred on human and environmental rights.
15 According to this vision, the Tribunal favoured the application of internationally recognized universal texts, in particular the Universal Declaration of Human Rights (1948) and the two 1966 Covenants (International Covenant on Civil and Political Rights (1966) and the International Covenant on Economic, Social and Cultural Rights (1966)), which, as the Tribunal somewhat pedagogically reminded us, constitute the ‘International Bill of Human Rights’ (IMT Advisory Opinion, 2017, 22). In the view of the Tribunal, these conventions constitute ‘normative benchmarks’ (IMT Advisory Opinion, 2017, 11), also applying to companies.
16 The law applied by the Tribunal was a clever mixture of soft law and hard law. The Monsanto Tribunal, anticipating the development of positive law, helped society become accustomed to emerging norms such as the right to a healthy environment. Indeed, unlike the right to health and food or the freedom of scientific research as recognized in international human rights conventions (see respectively Arts 12, 11, and 15 International Covenant on Economic, Social and Cultural Rights), the right to a healthy environment is still an emerging right in the international legal order (see in particular Principle 1 Stockholm Declaration of the United Nations Conference on the Human Environment  [‘Stockholm Declaration’]), the Rio Declaration on Environment and Development  (Stockholm Declaration (1972) and Rio Declaration (1992)) and Art 11 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights,  [‘Protocol of San Salvador’]). This is the reason why in order to address the shortcomings of positive international law, the judges of the Tribunal relied on instruments that are not in themselves legally binding such as the United Nations Human Rights Council Resolution 25/21 on human rights and the environment (2014) (IMT Advisory Opinion, 2017, 17) or the Stockholm Declaration (IMT Advisory Opinion, 2017, 17).
17 The reference to soft law was also of interest for a further reason: it aimed at ensuring the ‘effectiveness’ of human rights vis-à-vis Monsanto, whereas the international treaties protecting these rights are addressed directly to States. In this context, the Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (contained in the annex to the 2011 Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie) were at the core of the Advisory Opinion: in accordance with these Principles, business enterprises ‘should’ respect human rights, avoid infringing them and address adverse human rights impacts with which they are involved (see, in particular, Principle 11). According to the Tribunal, while these Principles are not binding, they make it possible nevertheless to identify the consequences of existing standards and practices for States and businesses (IMT Advisory Opinion, 2017, 12) and also reflect the ‘normative expectations of society’ (IMT Advisory Opinion, 2017, 22). The Monsanto Tribunal also drew on the work of the United Nations special rapporteurs (IMT Advisory Opinion, 2017, see for instance 17, 18, and 22) and on the general comments of the UN Human Rights Treaty monitoring committees (IMT Advisory Opinion, 2017, see for instance 21 and 35). In this way, by echoing the work of international organizations, the Tribunal contributed to their dissemination to the general public. Conversely, the authoritative nature of these reports and comments—which can claim the ‘United Nations’ label and therefore a certain amount of consideration by its Member States—helped establish the views of the Tribunal, which was itself born out of the determination of civil society.
2. Composition and Procedure of the Tribunal
18 The Monsanto Tribunal consisted of five judges and a registry, plus the pleading counsels. In Monsanto’s view, however, the Tribunal would not provide the necessary guarantees of independence and impartiality for a fair trial (see ‘Monsanto’s statement on the Advisory Opinion of the “Monsanto Tribunal”’ ).
19 The judges of this Tribunal were jurists, magistrates, lawyers or consultants of their respective States. They were chosen, it seems, for their human rights expertise, not for their opinions. For this reason, they were, at first glance, impartial, ie, without prejudice or bias, which is important in the implementation of the appearances theory (see Sudre, 2009, 634). However, rather than that of the judges themselves, it was the independence and impartiality of the Tribunal as an institution that Monsanto appeared to question. Indeed, this Tribunal having been established on the initiative of committed personalities (Corinne Lepage, former Minister of the Environment, or Marie-Monique Robin, journalist and director), with the task of examining the conduct of a company constituting the archetype of a certain agricultural model, could not be neutral. However, the international criminal courts themselves are not entirely free of criticism in this regard: without going back as far as the Nuremberg and Tokyo Tribunals, which have often been equated with ‘justice of the victors’, the independence and impartiality of the International Criminal Tribunal for Rwanda, in particular, have been challenged (see Prosecutor v Clément Kayishema and Obed Ruzindana, 2001, paras 50–62, and Prosecutor v Ferdinand Nahimana and others, 2007, paras 18–46). On the other hand, impartiality does not necessarily mean neutrality: it could have a critical dimension (Ruiz Fabri and Sorel, 2010, 293). Last but not least, can an opinion tribunal be neutral? The purpose of such a tribunal is, by definition, to ‘alert public opinion’ (IMT Advisory Opinion, 2017, 9), or even to change the law; its raison d’être is not to duplicate the functions of State courts. Furthermore, an opinion tribunal is not a genuine ‘tribunal’ because it is not ‘established by law’ as required by international human rights conventions (see eg Art 14 (1) International Covenant on Civil and Political Rights, Art 6 (1) Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); ‘ECHR’) and Art 8 (1) American Convention on Human Rights (1969)).
20 However, as a human rights court, the Monsanto Tribunal could not disregard the guarantees of a fair trial. With regard to the rights of the defense, the President of the Tribunal invited Monsanto to submit its views on the matter: the invitation to appear before the Tribunal (see IMT Advisory Opinion, 2017, Annexes) was notified to the firm by extrajudicial act on 6 June 2016, ie 4 months before the commencement of the ‘proceedings’. In a relatively predictable manner, however, the company refused to attend the hearing. Should Monsanto have been represented against its will, including by appointing ex officio a lawyer to defend its interests? According to the Statute of the International Criminal Court (1998) (‘Rome Statute’), the presence of the accused at trial is required (see Art 63 Rome Statute); only the sentence may be pronounced in the absence of the accused (Art 76 (4) Rome Statute). Nevertheless, as far as the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) is concerned, trial in absentia had become a possibility in the case of failure to execute a warrant (see Art 61 ICTY Rules of Procedure and Evidence (1994, as amended in 2013)), and it has been widely used.
21 The United Nations Human Rights Committee (‘UN HRC’ or ‘HRC’) itself has admitted the possibility of a trial in absentia where it is in the interests of justice, in particular of the victims, and provided that certain conditions are met (see UN HRC General Comment No 32: Article 14: Right to equality before courts and tribunals and to a fair trial (2007), para 31; see also Daniel Monguya Mbenge v Zaire (25 March 1983), para 14.1). It is particularly necessary that the accused be informed of the charges filed against them as soon as possible and that they be notified of any proceedings brought against them. The case law of the ECtHR has also taken this approach: everyone has the right to attend their trial and to question witnesses, but they may waive this right (see Poitrimol v France, 1993, para 31). In the Court’s view, even if the person concerned is absent from their trial, they retain the right to be defended by counsel (Pelladoah v the Netherlands, 1994, para 40). This is, however, a right, not an obligation: according to the ECtHR, neither the letter nor the spirit of Article 6 ECHR prevents a person from waiving by their own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial (Pischalnikov v Russia, 2009, para 77). It is only necessary that this waiver be voluntary and unambiguous, which is the case here (see Monsanto, ‘An open letter about the Monsanto Tribunal’, 2016).
22 Adversarial proceedings, however, are not only ‘at the core of the defense’: they are also a means for courts to gain access to the legal truth (Ruiz Fabri and Jean-Marc Sorel, 2004, 179). This issue was raised by the Tribunal in its opinion: while indicating that it had no doubt as to the ‘sincerity’ of the witnesses, it pointed out that to the extent that ‘their testimony was not given under oath’ or ‘tested by cross-examination’, the Tribunal was ‘not in a position to make any findings of fact concerning the allegations of various company misdeeds’ (IMT Advisory Opinion, 2017, 13). Indeed, cross-examinations test the credibility of witnesses and identify any inconsistencies in their testimony, thus promoting full knowledge of the facts. Furthermore, given that the Tribunal had ‘no investigative powers’ (IMT Advisory Opinion, 2017, 10), it was led to consider that ‘the facts and circumstances described by the witnesses would be proven’ (IMT Advisory Opinion, 18 2017, 13). This position — which was the only one conceivable given the circumstances — is relatively fragile considering that the Tribunal had to deal with particularly sensitive issues. In particular, the judges had to discuss a study conducted in France under the direction of Gilles-Eric Séralini concerning the consumption of GMOs by rats. This study, which concluded that there was an increased mortality rate in individuals fed with GMOs, was controversial. Specifically, the researchers were criticized for using an unsuitable rat strain (Foucart, 2013). Nevertheless, Dr Defarge, when giving his testimony, responded to these criticisms by pointing out, in particular, that the strain used was the same strain that Monsanto used to conduct its own studies on GMOs; he also explained that Monsanto sought to repudiate the publications about the study by all possible means, which was confirmed by the ‘Monsanto Papers' revealed by the French newspaper, Le Monde, in May 2017 (Horel and Foucart, 2017). Certainly, in that case, a cross-examination by the representative of Monsanto would have been particularly useful. However, the fact that the Tribunal rendered an opinion and not a judgment makes it possible to put this difficulty into perspective. The ICJ has made it clear in connection with its own opinions that ‘the circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task’ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, para 58). Thus, with regard to the construction of a wall in the occupied Palestinian Territory, the ICJ considered that it had sufficient evidence to answer the questions put to it while Israel argued that ‘the Court could not give an opinion on questions which raise questions of fact that cannot be elucidated without hearing all parties to the conflict’ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, para 55).
C. The Contribution of the International Monsanto Tribunal
1. Legal Conclusions of the Monsanto Tribunal
23 The opinion rendered by the Monsanto Tribunal on 18 April 2017 is characterized by honesty and transparency; in this way, the Tribunal made no secret of its true nature: it defined itself as an ‘Opinion Tribunal’ (IMT Advisory Opinion, 2017, 9), namely a people’s tribunal. Furthermore, this advisory opinion is characterized by its legal nature. In this respect, it differs from some other decisions pronounced by previous opinion tribunals, which readily combined analyses of law, ethics and political or economic considerations (see eg PPT, ‘Transnational Enterprises and the Rights of Peoples in Colombia’, 2006, para 5.1). While it is true that the opinion has a critical and forward-looking dimension, the Tribunal remained well aligned with legal standards: its purpose was to examine ‘the rules of law applicable to highly problematic events or situations’ (IMT Advisory Opinion, 2017, 9). The Tribunal thus sought to emulate ‘real’ courts.
24 To answer the six questions put to it, the Monsanto Tribunal relied on the ‘judicial method’ (IMT Advisory Opinion, 2017, 9). Further, it used a classical syllogistic reasoning to address each of the questions posed: the legal standards (positive or emerging law) were the major premise while facts constituted the minor premise, with the application of the legal standards concerned being the conclusion of the syllogism.
25 In its concern to render an opinion rather than a judgment, the Tribunal cautiously chose its words: avoiding the use of the terms ‘responsibility’ or ‘violation’, it referred, as neutrally as possible, to the ‘adverse effects’ (IMT Advisory Opinion, 2017, 19 and 36) of Monsanto’s conduct in relation to human rights. Beyond the nuances of terminology, its message was nevertheless clear: according to the Tribunal’s view, the practices of this enterprise had serious impacts on these rights, in particular on the right to a healthy environment, the right to food, the right to health and the freedom of scientific research.
26 The Tribunal reported malformations in children and increased cancer rates following exposure to glyphosate (IMT Advisory Opinion, 2017, 19), a key ingredient in the herbicide, Roundup, marketed by Monsanto. This substance, as well as genetically modified organisms (also marketed by the company), threatens not only health but also the soil and biodiversity and therefore infringes on the right to the environment. In the Tribunal’s view, these products also affect the rights of indigenous peoples whose lifestyle is closely linked to the environment. These communities have indeed been misinformed about the risks associated with GMOs; their right to free and informed consent has not been respected.
27 While the Tribunal considered that Monsanto’s activities had an adverse impact on human rights, its conclusions were more qualified when it addressed the conduct of the company under international criminal law.
28 During the Vietnam War, as part of Operation ‘Ranch Hand’ from 1962 onwards, Monsanto provided the US Army with Agent Orange, a chemical defoliant that ‘was sprayed on Vietnamese forests to destroy the habitat and natural shelter of the Viet Cong and North Vietnamese troops’ (IMT Advisory Opinion, 2017, 42). The use of this agent has had serious consequences on human health and life (malformations, deaths) as well as on the environment.
29 According to the Rome Statute of the International Criminal Court, the act of ‘intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ (Art 8 (2) (b) Rome Statute) constitutes, in particular, a war crime in the framework of an international armed conflict. The punishment includes not only the commission of this crime, but also its facilitation, including providing the means for its commission (Art 25 (3) (c) Rome Statute). While Monsanto’s actions during the Vietnam War seem a priori to fall within the scope of these provisions, there are two reasons why the Tribunal has not reached a definitive conclusion on Monsanto’s complicity in war crimes. First, these reasons are of a factual nature: ‘No relevant evidence’ has been provided in this respect (IMT Advisory Opinion, 2017, 43), as explained by the Tribunal itself. Second, there exist also legal reasons.
30 One is that, at the time of the relevant facts, the Rome Statute had not been adopted. The Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (1949) was, of course, in force and ratified by the US (1955). This convention penalizes offences against human life and physical integrity. However, the Tribunal did not seem to want to take this convention into account and preferred to stick to the ICC Statute which is a reference text in international public opinion.
31 Another legal reason is the perpetrators of supranational crimes must be natural persons: there is no international criminal liability of legal persons, especially companies such as Monsanto. The Tribunal regretted this shortcoming and encouraged a revision of the Rome Statute (IMT Advisory Opinion, 2017, 41).
32 Even if the Tribunal refrained from expressing an opinion on Monsanto’s complicity in war crimes, it did not waive its right to render an opinion on the relevance of certain legal arguments that may have been put forward before national courts. In the Tribunal’s view, ‘the well-known argument that Agent Orange was used by the US armed forces as an herbicide to defoliate forests and not “directly” as a weapon against the population seems irrelevant’ (IMT Advisory Opinion, 2017, 43): since the US authorities knew or should have known that the use of Agent Orange would cause widespread damage to people and the environment, the distinction drawn between direct or indirect use of weapons loses any sense of materiality. Article 30 Rome Statute of the International Criminal Court confirms this interpretation: the crime must be ‘committed with intent and knowledge’ according to this article, bearing in mind that this condition is met if the person was aware that the criminal consequence could occur as a result of his/her conduct.
33 The Tribunal’s conclusions regarding the crime of ecocide were also qualified and conditional: ‘If the crime of ecocide were recognized in international criminal law—quod non for the time being— the activities of Monsanto could possibly constitute a crime of ecocide’ (IMT Advisory Opinion, 2017, 47). The Monsanto Tribunal noted the existing gaps in international criminal law: while it is true that international criminal law ‘began addressing the most serious crimes, including in respect of certain environmental issues’, it is also true that legal ‘gaps of protection remain’ in the protection of the environment (IMT Advisory Opinion, 2017, 46). The distinction thus drawn by the Tribunal between lex lata and lex ferenda international law stands in contrast with the traditional reasoning of opinion tribunals, which are often inclined to consider an emerging right as positive law (see eg PPT, Transnational Enterprises and the Rights of Peoples in Colombia, 2006, para 5.3.2).
34 According to the Tribunal, however, ‘the time is ripe for proposing to set up the new legal concept of Ecocide and to integrate it in a future amended version of the Rome Statute’ (IMT Advisory Opinion, 2017, 47). The Tribunal itself proposed some elements of the definition of the crime of ecocide, indicating both what does and does not constitute such a crime. Accordingly, the crime of Ecocide means ‘devastation and destruction which aim at damaging or destroying the ecology of geographic areas to the detriment of all life, whether human, animal or plant’ (IMT Advisory Opinion, 2017, 46). By contrast, this crime can in no way be equated with the crime of genocide as defined, inter alia, in the Rome Statute (IMT Advisory Opinion, 2017, 47).
2. Extent of the Monsanto Tribunal’s Advisory Opinion
35 While the task with which it was entrusted was to assess the conduct of Monsanto concerning human and environmental rights, in its Advisory Opinion the Tribunal also proposed measures to bridge the ‘growing gap between international human rights law and corporate accountability’ (IMT Advisory Opinion, 2017, 49). In making these proposals, the Tribunal cast aside the traditional role of national or international courts as guardians of the temple whose function is to ‘pronounce the law’ and put itself in the position of an architect of the international legal order. It thus regained the more traditional role of civil society consisting, namely, of identifying ‘normative needs’ (Pomade, 2009, 382) and giving impetus to the creation of legal standards. Unlike the advisory opinions of the ICJ, the Monsanto Tribunal’s advisory opinion does not contain separate or dissenting opinions: its purpose was to deliver a single and coherent message.
36 In order to rebalance an international law system marked by a growing asymmetry between the rights and obligations of multinational corporations, the Tribunal has proposed two reorientation measures. The first one aims at prioritizing the international legal order, particularly by relying on ius cogens, so as to ensure the primacy of human and environmental rights over international economic rules. Indeed, in the Tribunal’s view, private tribunals before which foreign investors may bring their disputes with a State are called upon to ‘arbitrate conflicts between human rights norms and those of investment and trade law’ and this is a role that ‘at best, they are ill-suited to serve’ (IMT Advisory Opinion, 2017, 51).
37 The second reorientation measure advocated by the Tribunal aims at hardening and strengthening the international human and environmental rights obligations of non-state actors, especially multinational corporations (IMT Advisory Opinion, 2017, 52). In order to do so, it would be necessary to treat them as bearers of obligations arising from human rights conventions, ie they should guarantee the direct horizontal effect of these conventions.
Indeed, as has been pointed out during the ‘pleadings’, corporate social responsibility is not enough: it allows companies to call themselves ‘responsible for seducing’ while also escaping, with some exceptions, the punishment imposed by the courts (Cuzacq, 2012). Civil society thus calls for a ‘hard law’ adopted by States, ie a particularly traditional approach to law.
38 Besides, as already mentioned, according to the Tribunal, legal persons should be considered as perpetrators of supranational crimes and prosecuted by the ICC.
39 The question which arises is whether the Monsanto Tribunal will contribute to the evolution of positive international law. Undoubtedly, this ‘proceeding’ initiated by the ‘citizens of the world’ can only tarnish the image of Monsanto: the ‘name and shame’ technique could prove effective in a world where companies are increasingly resorting to greenwashing. For the rest, the effects of such a ‘proceeding’ can only be assessed in the long term and will probably be indirect. The fate of the opinion rendered is now in the hands of its addressees, in particular the UN HRC and the ICC, to whom this advisory opinion has been transmitted (see Barroux, 2017).
40 In any event, this opinion has helped inform public opinion about the corporate practices of companies such as Monsanto and their impact on human rights. As such, it is revealing that in parallel to the hearings of the Tribunal, the so-called ‘Assembly of Peoples’ was held. In the framework of this Assembly, conferences and workshops, in particular on the right to information and the right to the environment, have been offered to the public.
41 The Tribunal also sought to provide ‘legal tools’ (IMT Advisory Opinion, 2017, 13) to future victims of Monsanto or other multinational corporations of the same nature: the ‘moot trial’ is intended to lead to ‘real’ trials. From this point of view, this tribunal could be a preliminary stage to the evolution of international law. Moreover, by trying Monsanto, the Tribunal has prepared society for the principle of international responsibility of multinational corporations. It has also tightened the noose around sovereign States which, in the medium-to-long term, will be forced to examine further the desirability of punishing the crime of ecocide in the international legal order. Nonetheless, in order to ensure that this crime can be punished, the Rome Statute should be amended, which would require reaching a consensus or obtaining the prior consent of a two-thirds majority of States Parties to the Rome Statute (see Art 121 (3) Rome Statute). Such an objective seems difficult to achieve given the long time it took to establish the ICC itself. Nevertheless, international civil society knows how to bring about these irreversible situations ‘which make it impossible for the States to take certain positions’ (Ghérari and Szurek, 2003, 108).
P Bourdieu, ‘Les rites comme actes d’institution’ (1982) 43(1) Actes de la Recherche en Sciences Sociales 58–63.
A Garapon, Bien juger—essai sur le rituel judiciaire (Odile Jacob Paris 2001).
H Ghérari and S Szurek (eds), L’émergence de la société civile internationale: vers la privatisation du droit international ? (Pedone Paris 2003).
H Ruiz Fabri and JM Sorel (eds), Le principe du contradictoire devant les juridictions internationales (Pedone Paris 2004).
F Sudre, ‘Le mystère des ‘‘apparences’’ dans la jurisprudence de la Cour européenne des droits de l’homme’ (2009) 79 RTDH 633–50.
A Pomade, La société civile et le droit de l’environnement. Contribution à la réflexion sur les théories et les sources du droit et de la validité (LGDJ Paris 2010).
H Ruiz Fabri and JM Sorel (eds), Indépendance et impartialité des juges internationaux (Pedone Paris 2010).
N Cuzacq, ‘Le cadre normatif de la RSE, entre soft law et hard law’ (2012) 31 < hal-00881860> <https://hal.archives-ouvertes.fr/hal-00881860/document> (accessed 28 September 2018).
S Foucart, ‘OGM: que reste-t-il de ‘‘l'affaire des rats’’ de Séralini ?’ (17/10/2013) Le Monde.
HJ McCammon and AR McGrath, ‘Litigating Change? Social Movements and the Court System’, (2015) 9(2) Sociology Compass 128–39.
C Cournil, ‘Réflexions sur les méthodes d’une doctrine environnementale à travers l’exemple des tribunaux environnementaux des peuples’ (2016) Revue juridique de l’environnement (numéro spécial) 201–18.
R Barroux, ‘Tribunal Monsanto: la firme américaine reconnue coupable d’atteintes aux droits humains’ (18/04/2017) Le Monde.
S Horel and S Foucart, ‘L’affaire Séralini ou l’histoire secrète d’un torpillage’ (5/10/2017) Le Monde.
AW Blaser, ‘How to Advance Human Rights Without Really Trying: an analysis of nongovernmental tribunals’ (1992) 14 HumRtsQ 339–70.
MA Gray, ‘The International Crime of Ecocide’ (1996) 26/2 CalWIntlLJ 215–71.
CM Chinkin, ‘Women’s International Tribunal on Japanese Military Sexual Slavery’ (2001) 95/2 AJIL 335–41.
AJ Klinghoffer and JA Klinghoffer, International Citizen’s tribunals: Mobilizing public Opinion to Advance Human Rights (Palgrave Macmillan New York 2002).
AM La Rosa, Juridictions pénales internationales: la procédure et la preuve (Institut des Hautes Etudes Internationales Genève 2003).
P Dabrowska, ‘GM Foods, Risk, Precaution and the Internal Market: Did Both Sides Win the Day in the recent Judgment of the European Court of Justice?’ (2004) 5(2) German Law Journal 151–66.
L Malone and S Pasternack, Defending the Environment: Civil Society Strategies to Enforce International Environmental Law (Transnational Publishers New York 2004).
DK Anton and DL Shelton, Environmental Protection and Human Rights (CUP Cambridge 2011).
E Haslam, ‘Subjects and Objects: International Criminal Law and the Institutionalization of Civil Society’ (2011) 5(2) International Journal of Transitional Justice 221–40.
F Ost, Dire le droit, faire justice (2nd edn Bruylant Bruxelles 2012).
G Simm and A Byrnes, ‘International Peoples’ Tribunals in Asia: Political Theatre, Juridical Farce or Meaningful Intervention?’ (2013) 4(1) AsianJIL 103–24.
D Brodowski, M Espinoza de los Monteros de la Parra, K Tiedemann, and J Vogel (eds), Regulating Corporate Criminal Liability (Springer Cham 2014).
E Herath, ‘Trials in Absentia: Jurisprudence and Commentary on the Judgment in Chief Prosecutor v. Abul Kalam Azad in the Bangladesh International Crimes Tribunal’ (2014) 55 HarvIntlLJ 1–12 (online edition).
J Janewa OseiTutu, ‘Agricultural Biotechnology: Drawing on International Law to Promote Progress’ (2015) Michigan State Law Review 531–51.
M Zunino, ‘Subversive Justice: The Russell Vietnam War Crimes Tribunal and Transitional Justice’ (2016) 10 (2) International Journal of Transitional Justice 211–29.
S Foucart and S Horel, ‘“Monsanto papers’’, désinformation organisée autour du glyphosate’ (4 October 2017).
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (done 14 November 1988, entered into force 16 November 1999) (1989) 28 ILM 156 (Protocol of San Salvador).
Monsanto’s statement on the Advisory Opinion of the ‘Monsanto Tribunal’ (18 April 2017), <https://monsantoblog.eu/monsantos-statement-on-the-advisory-opinion-of-the-monsanto-tribunal-enfrdenles/> (accessed 10 August 2017).
UN Human Rights Council, ‘Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, John Ruggie: Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ (21 March 2011) UN Doc A/HRC/17/31.