Globalisation - a serious gap in the law

The International Monsanto Tribunal issued its decision a few days ago.

It is a self-established tribunal, crowd-funded internationally by a group of NGOs and others who do not believe in GM food and large agri-businesses, and it investigated allegations against one of the largest agri-businesses, Monsanto. In the words of tribunal supporters, they were investigating Monsanto for ‘human rights violations, for crimes against humanity, and for ecocide’. Monsanto for its part refused to have anything to do with it, saying that it had been ‘staged by a select group of anti-agriculture technology and anti-Monsanto critics who played organizers, judge and jury’.

I do not propose to go into the merits of the allegations themselves, but rather into points of interest generally for lawyers.

The idea of a self-established tribunal, staffed by eminent international judges, jurists and lawyers, to decide a set of allegations which would otherwise go uninvestigated is not new. There was the long-ago Russell Tribunal in 1967 which investigated US behaviour in the Vietnam War (although it was mainly composed of artists and philosophers), and many more civil society tribunals have emerged since to fill a vacuum created by the absence of other available judicial fora.

If people are setting up their own courts, a problem is usually being signalled – that evidence cannot be aired impartially nor conduct impartially investigated in any other forum. In other words, there may be a justice gap. The aims of the original Russell Tribunal have been partly satisfied through the much more recent establishment of the International Criminal Court – although, of course, the US has still not signed up to that.

In the case of Monsanto, the tribunal devoted a section of its judgment to this very point: ‘The growing gap between international human rights law and corporate accountability’. In brief, although multinational companies like Monsanto are awarded huge powers in investment treaties to inhibit governments from regulating, say, the environment in order to protect Monsanto’s original investment, potential victims do not have equivalent powers to ensure compliance by Monsanto with human rights obligations, or, even more importantly, to enforce sanctions and obtain damages after the event if things go wrong. (Monsanto is here, and throughout this piece, merely an illustration.)

There are various reasons for the vast imbalance between the two sides of the equation. A major one is the difficulty for citizens around the world to access justice domestically in such cases. There has been much research on this point, with recommendations on remedies to assist. The Office of the United Nations High Commissioner for Human Rights is one hub of research, and in particular the work of the Special Representative on Human Rights and Transnational Corporations and Other Business Enterprises. Another is the body I mentioned last week, the EU’s Fundamental Rights Agency, which has just released a report on improving access to remedy in the area of business and human rights at EU level.

But there are other problems which are not so easy to resolve. For instance, there is the legal problem that international human rights treaties have not so far bound corporations, on the ground that they are not considered as subjects of international law. To remedy this, there would need to be an expansion of the application of human rights law. But this would be implemented by – who exactly? On this vital question, the Monsanto Tribunal ducks, and merely calls on authoritative bodies to do something about it.

And finally, the report draws attention to the current investor-state dispute settlement regime, which it effectively calls a privatisation of disputes relating to human rights (with ‘persistent conflicts of interest’ – that is a reference to the lawyers involved in it, who sometimes act as counsel and sometimes as arbitrators). The tribunal claims that this regime ‘fundamentally undermines the capacity of nations to fulfil current international human rights obligations’.

The important moral question raised by the Monsanto Tribunal is ‘Which should be given primacy: human and environmental rights or trade and investment rights?’. Most people would agree with the principle that the protection of human rights is among the first responsibilities of a government, certainly before the protection of trade and investment rights. But at present, this is not the case.

There is much in the air about the evils of globalisation, and we have seen the consequences of stressing the benefits and not dealing with disadvantages in recent elections in the Western democracies. Here is one of the potential evils, and it is right in our field: law and its application. It seems distant, maybe because it is not an area of law in which we primarily work, or because we see no direct impact around us. But without a remedy it will continue to have direct impact on our political fate.

Jonathan Goldsmith is former secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs