Sum­mary of the ad­vi­sory opin­ion of the In­ter­na­tional Mon­santo Tri­bunal

De­liv­ered on the 18th of April 2017 in The Hague, Nether­lands

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The In­ter­na­tional Mon­santo Tri­bunal is a unique “Opin­ion Tri­bunal” con­vened by civil so­ci­ety to clar­ify the le­gal obli­ga­tions and con­se­quences of some of the ac­tiv­i­ties of the Mon­santo Com­pany.

Dur­ing the hear­ings that took place on Oc­to­ber 15th and 16th in The Hague, judges heard tes­ti­monies re­lated to the six ques­tions posed to the Tri­bunal¹. The en­su­ing le­gal opin­ion de­liv­ered by the Tri­bunal in­cludes a le­gal anal­y­sis of the ques­tions asked, with re­spect to both ex­ist­ing in­ter­na­tional law, and to prospec­tive law in or­der to im­prove in­ter­na­tional hu­man rights and en­vi­ron­men­tal law.

The ad­vi­sory opin­ion is struc­tured in three parts. The in­tro­duc­tory sec­tion de­tails the con­di­tions within which the Tri­bunal was ini­ti­ated. The mid­dle sec­tion ex­am­ines the six ques­tions posed to the Tri­bunal. Look­ing at the broader pic­ture, the fi­nal sec­tion tack­les the grow­ing asym­me­try be­tween the rights con­ceded to cor­po­ra­tions and the con­straints im­posed upon them to pro­tect lo­cal com­mu­ni­ties and/or fu­ture gen­er­a­tions, wher­ever cor­po­ra­tions op­er­ate.

Ques­tion 1, as posed to the Tri­bunal, re­lated to al­leged in­fringe­ment on the right to a healthy en­vi­ron­ment. In other words, did the Mon­santo firm, by its ac­tiv­i­ties, act in con­form­ity with the right to a safe, clean, healthy and sus­tain­able en­vi­ron­ment, as rec­og­nized in in­ter­na­tional hu­man rights law (Res­o­lu­tion 25/21 of the Hu­man Rights Coun­cil, of 15 April 2014), tak­ing into ac­count the re­spon­si­bil­i­ties im­posed on cor­po­ra­tions by the Guid­ing Prin­ci­ples on Busi­ness and Hu­man Rights, as en­dorsed by the Hu­man Rights Coun­cil in Res­o­lu­tion 17/4 of 16 June 2011?

The Tri­bunal re­calls that “the right to a healthy en­vi­ron­ment” con­cept can be traced to the

UN Con­fer­ence on the Hu­man En­vi­ron­ment in Stockholm, 1972. With the no­tion that the en­vi­ron­ment is a pre­con­di­tion for the en­joy­ment of hu­man rights, this marked the dawn of a new era in in­ter­na­tional law. To­day, no less than 140 states have in­cor­po­rated the right to a healthy en­vi­ron­ment into their con­sti­tu­tions, mak­ing it a norm of in­ter­na­tional cus­tom­ary law. The Spe­cial Rap­por­teur on Hu­man Rights and En­vi­ron­ment, John Knox, has iden­ti­fied threats on the right to a healthy en­vi­ron­ment, and es­tab­lished a set of re­quire­ments to pro­tect it. The UN Hu­man Rights Coun­cil has con­cluded that hu­man rights law sets cer­tain obli­ga­tions on States to guar­an­tee that the right to en­joy a healthy en­vi­ron­ment is re­spected. The Mon­santo Tri­bunal hear­ings al­lowed for the gath­er­ing of tes­ti­monies re­lated to var­i­ous im­pacts on hu­man health (es­pe­cially on farm­ers), soils, plants, aquatic or­gan­isms, an­i­mal health and bio­di­ver­sity. These tes­ti­monies also in­cluded the im­pacts of spray­ing crop pro­tec­tion prod­ucts (her­bi­cides, pes­ti­cides). In ad­di­tion, the in­for­ma­tion col­lected also shed light on the im­pacts on in­dige­nous com­mu­ni­ties and peo­ples in many coun­tries, and on the ab­sence of ad­e­quate in­for­ma­tion given to those con­cerned.

Based on the above find­ings and to an­swer Ques­tion 1, the Tri­bunal con­cludes that Mon­santo has en­gaged in prac­tices which have neg­a­tively im­pacted the right to a healthy en­vi­ron­ment.

¹ See terms of ref­er­ence.

Ques­tion 2 con­cerned the al­leged in­fringe­ment on the right to food as rec­og­nized in Ar­ti­cle 11 of the In­ter­na­tional Covenant on Eco­nomic, So­cial and Cul­tural Rights, in Ar­ti­cles 24.2(c) and (e) and 27.3 of the Con­ven­tion on the Rights of the Child, and in Ar­ti­cles 25(f) and 28.1 of the Con­ven­tion on the Elim­i­na­tion of All Forms of Dis­crim­i­na­tion against Women.

Ac­cord­ing to the UN Com­mit­tee on Eco­nomic, So­cial and Cul­tural Rights, “The right to ad­e­quate food is re­al­ized when ev­ery man, woman and child, alone or in com­mu­nity with oth­ers, has phys­i­cal and eco­nomic ac­cess at all times to ad­e­quate food or means for its pro­cure­ment”. Ac­cord­ing to the Tri­bunal, busi­ness en­ti­ties are also re­spon­si­ble to re­spect this right by ap­ply­ing the Guide­lines for Multi­na­tional En­ter­prises of the OECD and the UN Guid­ing Prin­ci­ples on Busi­ness and Hu­man Rights. The hear­ings ac­counted for neg­a­tive im­pacts on pro­duc­tion sys­tems and ecosys­tems, the ap­pear­ance of in­va­sive species and the loss of ef­fi­ciency of Roundup over time. Some farm­ers were sen­tenced to pay roy­al­ties after their fields were con­tam­i­nated by ge­net­i­cally mod­i­fied or­gan­isms (GMOS), while oth­ers stated that the cor­po­ra­tion is tak­ing over the seed mar­ket, even though Mon­santo’s prod­ucts are not as pro­duc­tive as promised.

In re­sponse to Ques­tion 2, the Tri­bunal con­cludes that Mon­santo has en­gaged in prac­tices that have neg­a­tively im­pacted the right to food. Mon­santo’s ac­tiv­i­ties af­fect food avail­abil­ity for in­di­vid­u­als and com­mu­ni­ties and in­ter­fere with the abil­ity of in­di­vid­u­als and com­mu­ni­ties to feed them­selves directly or to choose non-ge­net­i­cally mod­i­fied seeds. In ad­di­tion, ge­net­i­cally mod­i­fied seeds are not al­ways af­ford­able for farm­ers and threaten bio­di­ver­sity. Mon­santo’s ac­tiv­i­ties and prod­ucts cause dam­age to soil, wa­ter and to the en­vi­ron­ment more gen­er­ally. The Tri­bunal con­cludes that food sovereignty is also af­fected and un­der­lines the cases in which ge­netic con­tam­i­na­tion of fields forced farm­ers to pay roy­al­ties to Mon­santo or even to aban­don their non-gmo crops due to this con­tam­i­na­tion. There is in­deed an in­fringe­ment on the right to food be­cause of ag­gres­sive mar­ket­ing on GMOS which can force farm­ers to buy new seeds ev­ery year. The dom­i­nant agro-in­dus­trial model can be crit­i­cized even more strongly be­cause other mod­els - such as agroe­col­ogy - ex­ist that re­spect the right to food

Ques­tion 3 con­cerned the al­leged in­fringe­ment on the right to the high­est at­tain­able stan­dard of health of ev­ery­one can reach, as rec­og­nized in Ar­ti­cle 12 of the In­ter­na­tional Covenant on Eco­nomic, So­cial and Cul­tural Rights, or the right of child to the en­joy­ment of the high­est at­tain­able stan­dard of health, as rec­og­nized by Ar­ti­cle 24 of the Con­ven­tion on the Rights of the Child.

The right to health is in­ter­twined with the rights to food, wa­ter and san­i­ta­tion, and to a healthy en­vi­ron­ment. The right to health is also rec­og­nized in many re­gional hu­man rights pro­tec­tion in­stru­ments. It en­com­passes phys­i­cal, men­tal and/or so­cial health. The Tri­bunal heard

wit­nesses’ ac­counts of se­vere con­gen­i­tal dis­eases, de­vel­op­ment of non-hodgkin lym­phomas, chronic dis­eases, Lasso poi­son­ing or even death oc­cur­ring after direct or in­di­rect en­vi­ron­men­tal ex­po­sure to prod­ucts man­u­fac­tured by Mon­santo. The Tri­bunal re­calls that this com­pany has man­u­fac­tured and dis­trib­uted many dan­ger­ous sub­stances. First were PCBS, per­sis­tent or­ganic pol­lu­tants ex­clu­sively com­mer­cial­ized by Mon­santo be­tween 1935 and 1979 de­spite the fact that the com­pany knew about their dele­te­ri­ous health im­pacts. PCBS are now for­bid­den by the 2001 Stockholm Con­ven­tion on Per­sis­tent Or­ganic Pol­lu­tants. This car­cino­genic prod­uct also causes prob­lems with fer­til­ity and child de­vel­op­ment, and dis­rupts the im­mune sys­tem. Se­condly, glyphosate (in­gre­di­ent in Roundup) is con­sid­ered in some stud­ies as a car­cino­genic prod­uct while other re­ports, such as the one from the Euro­pean Food Safety Au­thor­ity (EFSA), con­clude the op­po­site. In an opin­ion is­sued on the 15th of March 2017 and re­lated to the clas­si­fi­ca­tion of glyphosate, the Euro­pean Chem­i­cals Agency (ECHA) in­deed es­ti­mated that this prod­uct could not be clas­si­fied as a car­cino­gen, as a mu­ta­gen or as toxic for re­pro­duc­tion. The Tri­bunal how­ever stresses that this clas­si­fi­ca­tion does not take into ac­count the risks of ex­po­sure, with residues found in food, drink­ing wa­ter and even in hu­man urine. The com­mer­cial­iza­tion of Roundup-re­sis­tant GMO crop seed has re­sulted in wide­spread dis­tri­bu­tion and use of this prod­uct. It is clas­si­fied as “prob­a­bly car­cino­genic to hu­mans” by the World Health Or­gan­i­sa­tion’s (WHO) In­ter­na­tional Agency for Re­search on Can­cer. Other re­ports as­sert the geno­tox­i­c­ity of glyphosate on hu­mans and an­i­mals. Last but not least, in­ter­nal Mon­santo doc­u­ments re­leased in March 2017 as a re­sult of a court or­der of the U.S. District Court, North­ern District of Cal­i­for­nia (San Fran­cisco) show that Mon­santo has ma­nip­u­lated sci­ence. This makes hol­low the so-called sci­en­tific con­tro­versy about the risks glyphosate pose on health. Thirdly, the use of GMO seed raises mul­ti­ple ques­tions. There is a dis­tinct lack of sci­en­tific con­sen­sus about the im­pacts of GMOS on hu­man health. The con­tro­versy is em­bed­ded in a con­text of opac­ity on GMO stud­ies, and even on the in­abil­ity of re­searchers to con­duct in­de­pen­dent re­search. The “Mon­santo Pa­pers” cast light on prac­tices of sys­tem­atic ma­nip­u­la­tion of sci­en­tific stud­ies, and on the in­flu­ence ex­erted on ex­perts by Mon­santo. There is no po­lit­i­cal con­sen­sus on the cul­ti­va­tion of GMOS ei­ther. The UN Spe­cial Rap­por­teur on the Right to Food, an in­de­pen­dent ex­pert, calls for the need to fol­low the pre­cau­tion­ary prin­ci­ple at the global level. The Tri­bunal con­cludes that Mon­santo has en­gaged in prac­tices that neg­a­tively im­pacted the right to health.

Ques­tion 4 con­cerned the al­leged in­fringe­ment on the free­dom in­dis­pens­able for sci­en­tific re­search, as guar­an­teed by Ar­ti­cle 15(3) of the In­ter­na­tional Covenant on Eco­nomic, So­cial and Cul­tural Rights, as well as the free­doms of thought and ex­pres­sion guar­an­teed in Ar­ti­cle 19 of the In­ter­na­tional Covenant on Civil and Po­lit­i­cal Rights.

The “free­dom in­dis­pens­able for sci­en­tific re­search” closely re­lates to free­dom of thought and ex­pres­sion, as well as the right to in­for­ma­tion. It is there­fore key to safe­guard­ing other fun­da­men­tal rights, such as the right to health, food, wa­ter and a healthy en­vi­ron­ment. This free­dom en­gen­ders the re­quire­ment to en­sure that sci­en­tific re­searchers are able to ex­press them­selves freely and are pro­tected when act­ing as whis­tle-blow­ers. Some of Mon­santo’s prac­tices men­tioned in the tes­ti­monies of agron­o­mists and molec­u­lar bi­ol­o­gists have re­sulted in court con­vic­tions for the com­pany. Among those prac­tices are: il­le­gal GMO

plan­ta­tions; re­sort­ing to stud­ies mis­rep­re­sent­ing the neg­a­tive im­pacts of Roundup by lim­it­ing the anal­y­sis to glyphosate only while the prod­uct is a com­bi­na­tion of sub­stances; mas­sive cam­paigns aim­ing at dis­cred­it­ing the re­sults of in­de­pen­dent sci­en­tific stud­ies. These strate­gies led, for ex­am­ple, to the with­drawal of a study pub­lished in an in­ter­na­tional jour­nal and to the loss of a job for a sci­en­tist work­ing in a gov­ern­men­tal health agency.

In re­sponse to Ques­tion 4, the Tri­bunal con­cludes that Mon­santo’s con­duct is neg­a­tively af­fect­ing the right to free­dom in­dis­pens­able for sci­en­tific re­search. Con­duct such as in­tim­i­da­tion, dis­cred­it­ing in­de­pen­dent sci­en­tific re­search when it raises se­ri­ous ques­tions about the pro­tec­tion of the en­vi­ron­ment and pub­lic health, sub­orn­ing false re­search re­ports, put­ting pres­sure on gov­ern­ments are trans­gress­ing the free­dom in­dis­pens­able for sci­en­tific re­search. This abuse is ex­ac­er­bated by ex­po­sure to health and ac­com­pa­ny­ing en­vi­ron­men­tal risks, which de­prive so­ci­ety the pos­si­bil­ity to safe­guard fun­da­men­tal rights. Tak­ing direct mea­sures to si­lence sci­en­tists or at­tempt­ing to dis­credit their work con­sti­tutes con­duct that abuses the right to free­dom in­dis­pens­able for sci­en­tific re­search and the right to free­dom of ex­pres­sion. This neg­a­tively af­fects the right to in­for­ma­tion.

Ques­tion 5 con­cerned the al­leged com­plic­ity in war crimes as de­fined in Ar­ti­cle 8(2) of the Statute of the In­ter­na­tional Crim­i­nal Court (ICC), by pro­vid­ing Agent Orange.

Be­tween 1962 and 1973, more than 70 mil­lion liters of Agent Orange (con­tain­ing dioxin) were sprayed on ap­prox­i­mately 2.6 mil­lion hectares of land. This de­fo­li­at­ing chem­i­cal has caused se­ri­ous harm to health in the Viet­namese civil­ian pop­u­la­tion. And the harm caused to Amer­i­can, New Zealand, Aus­tralian and Korean vet­er­ans has lead to court cases and to the recog­ni­tion of Mon­santo’s re­spon­si­bil­ity, among oth­ers. Be­cause of the cur­rent state of in­ter­na­tional law and the ab­sence of spe­cific ev­i­dence, the Tri­bunal can­not give any de­fin­i­tive an­swer to the ques­tion it was asked. Nev­er­the­less, it seems that Mon­santo knew how its prod­ucts would be used and had in­for­ma­tion on the con­se­quences for hu­man health and the en­vi­ron­ment. The Tri­bunal is of the view that, would the crime of Eco­cide be added in In­ter­na­tional law, the re­ported facts could fall within the ju­ris­dic­tion of the In­ter­na­tional Crim­i­nal Court (ICC).

Ques­tion 6 asked the Tri­bunal if the ac­tiv­i­ties of Mon­santo could con­sti­tute a crime of eco­cide, un­der­stood as caus­ing se­ri­ous dam­age or de­stroy­ing the en­vi­ron­ment, so as to sig­nif­i­cantly and durably al­ter the global com­mons or ecosys­tem ser­vices upon which cer­tain hu­man groups rely.

De­vel­op­ments in in­ter­na­tional en­vi­ron­men­tal law con­firms the in­creased aware­ness of how en­vi­ron­men­tal harm neg­a­tively af­fects the fun­da­men­tal val­ues of so­ci­ety. Pre­serv­ing dig­nity for present and fu­ture gen­er­a­tions and the in­tegrity of ecosys­tems is an idea that has gained trac­tion in the in­ter­na­tional com­mu­nity. As an ev­i­dence of these de­vel­op­ments, and ac­cord­ing to the Pol­icy Pa­per on Case Se­lec­tion and Pri­ori­ti­sa­tion from Septem­ber 2016, the Pros­e­cu­tor of the ICC wants to give par­tic­u­lar con­sid­er­a­tion to Rome Statute crimes in­volv­ing the il­le­gal dis­pos­ses­sion of land or the de­struc­tion of the en­vi­ron­ment. How­ever, de­spite the de­vel­op­ment of many in­stru­ments to pro­tect the en­vi­ron­ment, a gap re­mains be­tween le­gal com­mit­ments and the re­al­ity of en­vi­ron­men­tal pro­tec­tion. The Tri­bunal as­sesses that in­ter­na­tional law should now pre­cisely and clearly as­sert the pro­tec­tion of the en­vi­ron­ment and the crime of eco­cide. The Tri­bunal con­cludes that if such a crime of eco­cide were rec­og­nized in in­ter­na­tional crim­i­nal law, the ac­tiv­i­ties of Mon­santo could pos­si­bly con­sti­tute a crime of eco­cide. Sev­eral of the com­pany’s ac­tiv­i­ties may fall within this in­frac­tion, such as the man­u­fac­ture and sup­ply of glyphosate-based her­bi­cides to Colom­bia in the con­text of its plan for aerial ap­pli­ca­tion on coca crops, which neg­a­tively im­pacted the en­vi­ron­ment and the health of lo­cal pop­u­la­tions; the large-scale use of dan­ger­ous agro­chem­i­cals in in­dus­trial agri­cul­ture; and the en­gi­neer­ing, pro­duc­tion, in­tro­duc­tion and re­lease of ge­net­i­cally en­gi­neered crops. Se­vere con­tam­i­na­tion of plant di­ver­sity, soils and wa­ters would also fall within the qual­i­fi­ca­tion of eco­cide. Fi­nally, the in­tro­duc­tion of per­sis­tent or­ganic pol­lu­tants such as PCB into the en­vi­ron­ment caus­ing wide­spread, long-last­ing and se­vere en­vi­ron­men­tal harm and af­fect­ing the right of the fu­ture gen­er­a­tions could fall within the qual­i­fi­ca­tion of eco­cide as well.

In the third part of the ad­vi­sory opin­ion, the Tri­bunal in­sists on the widen­ing gap be­tween in­ter­na­tional hu­man rights law and cor­po­rate ac­count­abil­ity. It calls for two ur­gent ac­tions.

First is the need to as­sert the pri­macy of in­ter­na­tional hu­man and en­vi­ron­men­tal rights law. In­deed, a whole set of le­gal rules are in place to pro­tect in­vestors’ rights in the frame of the World Trade Or­ga­ni­za­tion, as well as in bi­lat­eral in­vest­ment treaties or in the in­vest­ment-re­lated clauses of free-trade agree­ments. These pro­vi­sions tend to un­der­mine the ca­pac­ity of na­tions to main­tain poli­cies, laws and prac­tices pro­tect­ing hu­man and en­vi­ron­men­tal rights. Ac­cord­ing to the Tri­bunal, there is an im­por­tant risk of a widen­ing gap be­tween in­ter­na­tional hu­man rights and en­vi­ron­men­tal law and in­ter­na­tional trade and in­vest­ment law. UN bod­ies ur­gently need to take ac­tion; oth­er­wise key ques­tions will be re­solved by pri­vate tri­bunals op­er­at­ing en­tirely out­side the UN frame­work.

The sec­ond call con­cerns the need to hold non­state ac­tors re­spon­si­ble within in­ter­na­tional hu­man rights law. The Tri­bunal is of the view that the time is ripe to con­sider multi­na­tional en­ter­prises as sub­jects of law that could be sued in the case of in­fringe­ment of fun­da­men­tal rights. The Tri­bunal clearly iden­ti­fies and de­nounces a se­vere dis­par­ity be­tween the rights of multi­na­tional cor­po­ra­tions and their obli­ga­tions. There­fore, the ad­vi­sory opin­ion en­cour­ages au­thor­i­ta­tive bod­ies to pro­tect the ef­fec­tive­ness of in­ter­na­tional hu­man rights and en­vi­ron­men­tal law against the con­duct of multi­na­tional cor­po­ra­tions.

Ap­pen­dices: let­ter sent by the Tri­bunal to in­vite Mon­santo to par­tic­i­pate in the hear­ings in The Hague on 15-16 Oc­to­ber 2016, list of wit­nesses in al­pha­bet­i­cal or­der and list of le­gal ex­perts.

Ap­pendix 2: list of wit­nesses in al­pha­bet­i­cal or­der Farida Akhter, pol­icy an­a­lyst, Bangladesh Kr­is­han Bir Choudhary, sci­en­tist, In­dia Shiv Cho­pra, ex­pert reg­u­la­tory agency, Canada Peter Claus­ing, tox­i­col­o­gist, Ger­many María Colin, lawyer, Mex­ico Art Dun­ham, vet­eri­nar­ian, USA An­gel­ica El Canché, bee­keeper, Mex­ico Diego Fernán­dez, farmer, Ar­gentina Marcelo Firpo, pub­lic and en­vi­ron­men­tal health re­searcher, Brazil Paul François, farmer and vic­tim, France Sabine Grat­aloup, vic­tim, France Don Hu­ber (rep­re­sented by Art Dun­ham), bi­ol­o­gist, USA Channa Jaya­sumana, ex­pert en­vi­ron­men­tal health, Sri Lanka Monika Krueger, vet­eri­nar­ian, Ger­many Ti­mothy Litzen­burg, lawyer, USA Miguel Lovera, agron­o­mist, Paraguay Steve Marsh, farmer, Aus­tralia Pe­dro Pablo Mu­tum­ba­joy, vic­tim, Colom­bia Ib Borup Ped­er­sen, pig farmer, Den­mark Juan Ig­na­cio Pereyra, vic­tim, Ar­gentina Claire Robin­son, aca­demic re­search, United King­dom Maria Liz Robledo, vic­tim Roundup, Ar­gentina Kolon Sa­man, vic­tim, Sri Lanka Percy Sch­meiser, farmer, Canada Gilles-eric Séralini (rep­re­sented by Ni­co­las De­farge), aca­demic re­search, France Chris­tine Shep­pard, vic­tim, USA Ous­mane Tien­drebeogo, farmer, Burk­ina Faso Feli­ciano Ucán Poot, bee­keeper, Mex­ico Damián Verzeñassi, doc­tor pub­lic health, Ar­gentina

Ap­pendix 3: list of le­gal ex­perts in al­pha­bet­i­cal or­der

Wil­liam Bour­don Clau­dia Gómez Godoy Maogato Jack­son Gwynn Mccar­rick (rep­re­sented by Maogato Jack­son) and Koffi Dog­bevi

Mam­mary gland tu­mors in rats ex­posed to glyphosate, from the orig­i­nal 2012 Gilles-eric Séralini pub­li­ca­tion, “Long-term Tox­i­c­ity of a Roundup Her­bi­cide and a Roundup-tol­er­ant ge­net­i­cally-mod­i­fied maize”, orig­i­nally pub­lished in Food and Chem­i­cal Tox­i­col­ogy, Novem­ber 2012, later re­tracted by the pub­lisher.

Some of the Many Dis­eases Al­ready Linked to Ex­po­sure to Glyphosate.

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