Liability and Redress in the Context of the Cartagena Protocol on Biosafety

Review of European Community and International Environmental Law

Volumn 19, Issue 2, 2010, Pages 197-206

  Jungcurt, Stefan ^a   Schabus, Nicole ^a  

^a HUMBOLDT UNIVERSITY   (Germany)

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; BIODIVERSITY; BIOSAFETY; ENVIRONMENTAL POLICY; INTERNATIONAL AGREEMENT; LIABILITY; NATURE CONSERVATION; POLICY IMPLEMENTATION; WILDLIFE MANAGEMENT;

EID: 78650181442     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2010.00677.x     Document Type: Article

References (35)

1. Cartagena Protocol on Biosafety to the Convention on Biological Diversity (Montreal, 29 September 2000).
2. The Biosafety Protocol defines LMOs as 'any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology'; see ibid., Article 3.
3. Rio Declaration on Environment and Development (A/CONF.151/26, 14 June 1992), Vol. I, Chapter I, Annex I, Principle 15.
4. For a discussion of liability and redress for biotechnology, see P. Cullet, 'Liability and Redress for Modern Biotechnology', in O.K. Fauchald and J. Werksman (eds), Yearbook of International Environmental Law, Vol. 15 (Oxford University Press, 2006), 4.
5. See C. Bai et al., 'Report of the Fifth Session of the Open-Ended Ad Hoc Working Group on Biosafety: 17-28 August 1998', 9:108 Earth Negotiations Bulletin (1998);
6. C. Bai et al., 'Report of the Sixth Session of the Open-Ended Ad Hoc Working Group on Biosafety and the First Extraordinary Session of the CBD Conference of the Parties: 14-23 February 1999', 9:117 Earth Negotiations Bulletin (1999).
7. Establishment of an Open-Ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress in the Context of the Protocol (CBD COP/MOP Decision BS-I/8, 27 February 2004).
8. A. Appleton et al., 'Fourth Meeting of the Parties to the Cartagena Protocol on Biosafety', 9:436 Earth Negotiations Bulletin (2008), at 8-9.
9. For the draft text of the Supplementary Protocol on liability and redress, see Report of the Third Meeting of the Friends of the Co-Chairs on Liability and Redress (UNEP/CBD/BS/GF-L&R/3/4, 19 June 2010), Annex, available at .
10. G.S. Nijar et al., Liability and Redress under the Cartagena Protocol on Biosafety: A Record of the Negotiations for Developing International Rules (CEBLAW, 2008), at 43.
11. See P. Cullet, n. 4 above, at 3; and CBD Secretariat, Determination of Damage to the Conservation and Sustainable Use of Biological Diversity, Including Case Studies (UNEP/CBD/BS/WG-L&R/2/INF/3, 1 February 2006), at 3, available at .
12. Negotiating coalitions changed over the process, with the EU and the African Group, respectively, being the most stable. The EU includes all EU members and some of the acceding States. The EU was represented by the European Commission, which has the mandate to speak on biosafety issues. Other industrialized countries did not negotiate as a group. The African Group includes all of the African region, although South Africa took a separate position on a number of issues. Throughout the process, Ethiopia, Uganda, Egypt and Liberia were the main speakers of the African Group. Asian developing countries were represented by Malaysia, India and occasionally others, but did not form a firm group. The Group of Latin America and Caribbean (GRULAC) was split on a number of key issues. This is in part due to the fact that a number of countries in the region are increasingly involved in the biotechnology industry. Countries such as Mexico, Brazil, Colombia, Argentina, Panama, Peru and Chile often took a more moderate position in general and opposed some of the key demands of other developing countries with regard to scope and civil liability. This also impacted on the ability of Group of 77 and China (G-77/China) to be organized in the liability and redress negotiations, although the group had previously proven effective in the biosafety negotiations. Since the group was split on the issue of civil liability, a smaller like-minded group in support of a civil liability regime formed at COP/MOP-4.
13. CBD Secretariat, The Concept of Imminent Threat of Damage and its Legal and Technical Implications (UNEP/CBD/BS/GF-L&R/3/INF/2, 29 April 2010), at 2-5, available at .
14. Ibid., at 1. See also J. Gnann et al., 'Summary of the Second Meeting of the Group of Friends of the Co-Chairs on Liability and Redress in the Context of the Cartagena Protocol on Biosafety: 8-12 February 2010', 9:495 Earth Negotiations Bulletin (15 February 2010), at 5-6.
15. See the definition of response measures in the Biosafety Protocol, n. 1 above, Article 2.2(f).
16. For an overview, see CBD Secretariat, Recent Developments in International Law Relating to Liability and Redress, Including the Status of International Environment-Related Third Party Liability Instruments (UNEP/CBD/BS/GF-L&R/3/INF/1, 12 May 2010), available at .
17. See CBD Secretariat, Status of Third-Party Liability Treaties and Analysis of Difficulties Facing their Entry Into Force (UNEP/CBD//BS/WG-L&R/ 1/INF/3, 15 April 2005), available at . See also n. 11 above.
18. See E. García et al., 'Summary of the First Meeting of the Group of Friends of the Co-Chairs on Liability and Redress in the Context of the Cartagena Protocol on Biosafety', 9:457 Earth Negotiations Bulletin (2 March 2009), at 11.
19. See J. Gnann et al., n. 13 above, at 7.
20. See A. Appleton et al., 'Summary of the Fifth Meeting of the Open-Ended Ad Hoc Working Group on Liability and Redress in the Context of the Cartagena Protocol on Biosafety: 12-19 March 2009', 9:435 Earth Negotiations Bulletin (2008), at 12.
21. See A. Appleton et al., n. 7 above, at 8.
22. See A. Appleton et al., n. 19 above, at 12.
23. See A. Appleton et al., n. 7 above; J. Gnann et al., n. 13 above; and E. García et al., n. 17 above.
24. See Supplementary Protocol, n. 8 above.
25. See 'Guidelines for the Development of National Legislation on access to Information, Public Participation and Access to Justice in Environmental Matters', in Environmental Law: Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (Decision SS.XI/5, 3 March 2010), Annex, printed in Proceedings of the Governing Council/Global Ministerial Environment Forum at its Eleventh Special Session (UNEP/GCSS.XI/11, 3 March 2010), at 12, available at .
26. Ibid., para. 1
27. See J. Gnann et al., n. 13 above, at 4-5.
28. Ibid.
29. D. Currie, Greenpeace International Explanatory Documents on the Biosafety Liability and Redress Negotiations: Backgrounder for the Fourth Meeting of the Ad hoc Open-Ended Working Group on Liability and Redress in the Context of the Biosafety Protocol (Greenpeace International, 17 October 2007), at 10-11, available at .
30. On financial security and availability of insurance, see M.G. Faure and D. Grimeaud, Financial Assurance Issues of Environmental Liability: Report for the European Commission (METRO and European Centre for Tort and Insurance Law, 1 December 2000), available at ;
31. P.K. Freeman and H. Kunreuther, 'Managing Environmental Risk through Insurance', in H. Folmer and T. Tietenberg (eds), International Yearbook of Environmental and Resource Economics 2003/04 (Edward Elgar, 2004), 159;
32. CBD Secretariat, Financial Security to Cover Liability Resulting from Transboundary Movements of Living Modified Organisms (UNEP/CBD/BS/WG-L&R/2/ INF/7, 13 February, 2006), available at ;
33. CBD Secretariat, Financial Security to Cover Liability Resulting from Transboundary Movements of Living Modified Organisms (UNEP/CBD/BS/WG-L&R/3/ INF/5, 10 January 2007), available at .
34. See CBD Secretariat, n. 16 above.
35. For more information about the Global Industry Compact, see Croplife International, Frequently Asked Questions about the Compact (Croplife International, undated), available at .