THIRD WORLD NETWORK INFORMATION SERVICE ON BIOSAFETY
8 December 2000
Dear friends and colleagues,
Developing an international biosafety liability and redress regime will be officially on the agenda for the second meeting of the Intergovernmental Committee for the Cartagena Protocol on Biosafety (ICCP). However, recent developments have highlighted the urgent need for such a regime and the critical issues that must be considered when developing international biosafety laws on liability and redress. In this TWN paper, the StarLink fiasco is used as a case study to consider liability and redress for harm arising from GMOs.
We hope that you will find this paper helpful and informative for ICCP 1 and in the months leading up to the second meeting of the ICCP.
With best wishes,
Chee Yoke Ling and Lim Li Lin
Third World Network
228 Macalister Road
LIABILITY AND REDRESS FOR GMO HARM: THE STARLINK CASE STUDY
Gurdial Singh Nijar, Third World Network
Aventis SA is a French firm. Its subsidiary is Aventis CropScience (ACS). ACS developed a particular kind of genetically engineered corn it calls ‘StarLink’. The corn plant is genetically engineered to contain a plant pesticide (Bt) resistant to the European corn borer. StarLink was given conditional registration by the US Environmental Protection Agency (EPA). The registration was limited to its use as animal feed or industrial use. It was not approved for human use. This was because it contains a Bt subspecies protein (Cry9C) which the EPA considers to be a potential allergen.(1) It was also not allowed to be shipped overseas.
Aventis planted StarLink on 352,000 acres of land in the US this year.(2) This represents a small fraction - a mere 0.5% - of the 10.4 billion bushel US corn crop.
The genetically modified corn has turned up in food - in taco shells distributed by three companies including Kraft. It has turned up in far off lands like Japan. So there has been a clear violation of the conditions on which the registration was granted: to keep the corn out of the food supply and, in any event, that there was to be no export.
Additionally, the Cry9C protein has also turned up in another variety of corn - a corn hybrid produced in 1998. The US Department of Agriculture (USDA) says that this is due either to cross pollination in the field or to mishandling of the seed during production and distribution.
The GM corn also contains ampicillin resistance marker genes (to establish whether the introduced gene trait is taken up by the host) and the cauliflower mosaic virus (to amplify the uptake of the gene introduced). There is ample scientific concern that antibiotic resistance will spread because of the marker genes; and that there will be new bacteria and new viruses that will spawn new and deadlier diseases as a result of the cauliflower mosaic virus.
At a recent meeting, on October 20 2000, of the EPA’s Scientific Advisory Panel, a scientist presented a study indicating that rats fed StarLink genetically modified (GM) corn began producing antibodies.
The damage thus is to the environment, human health. The damage could extend to ‘clean up’ costs, that is, the cost of removing the contaminated food products from the shelves; as well as uprooting plants and, if necessary, cleaning up the soil to prevent the regeneration.
This will also mean economic losses for those who had placed the contaminated unsegregated GM corn and food products on the market.
Already more than 300 brands of food products have been recalled from supermarkets, grocery shelves and restaurants just in the US alone. More products are being recalled for testing as the extent of the contamination is unknown.
Farmers growing biotech products including GM corn are also ‘rapidly losing valuable export markets’.(3) These economic losses can run into millions.
Japan has found the contaminated GM corn in its corn flour baking-mix from a manufacturer using raw corn imported from the US. Japan prohibits GM corn for both animal and human uses. Japan is the largest importer of corn in the world. The US supplies one third of its needs. Korea, also a significant importer of US corn, wants the US to pay for the cost of ensuring that the imports are GM free.
THE LIABILITY ISSUES
I. UNDER THE PRESENT INTERNATIONAL CUSTOMARY LAW
What is the obligation of the US for a private company within its territorial jurisdiction in respect of damage outside its borders?
At present there is no international liability regime for harm caused by genetically modified organisms. Nor is the US a party to the Convention on Biological Diversity (CBD) under which the Cartagena Protocol on Biosafety was concluded. The only recourse would be a claim under international customary law.
Under international customary law, the only obligation of the State will be one of ‘due diligence’. This requires the State to prevent conduct which if committed by the State would mean a breach of its international obligations. If the harm occurs, then it has an international obligation to take effective punitive action against the offenders.
In respect of the StarLink, the US could be said to have violated its international obligation of due diligence if it can be shown that:
· The US should not have allowed the limited registration, that is, approval for feed and not for food. Stewart Reeve of the National Corn growers Association of the USA has said that the EPA should never have given this approval. ‘It should have gotten food and feed approval at the same time - or not.’
· The US took no effective measures to ensure that the developer of the GM corn labelled the corn so as to distinguish between the corn for animal feed/ industrial purposes, and, the corn for human consumption.
· The US took no effective measures to prevent the GM corn from being exported.
· The US took no measures to ensure that adequate measures were in place (example, monitoring) to prevent the GM corn from entering the food chain.
· And that it was feasible for the US to have taken the above effective measures, assessed in the light of its capacity and its practices.
· If the conduct falls below an international minimum level, then responsibility will attach in any event.
In addition, once the US knew that StarLink GM corn had entered the food chain especially of countries overseas, it was clear that the producer and registrant of the corn was in violation of the conditions imposed by the EPA. The US was obliged by the other limb of the ‘due diligence’ obligation to punish the offender and, perhaps as well, require the offender to make reparation to aggrieved parties.
What the US EPA is reported to have done is to strongly urge Aventis ‘that they should voluntarily request that their registration be cancelled or the agency would take action.’(4) Further, the US EPA is entertaining an application by Aventis based on new data to allow the 4.8 million bushels of StarLink that remain unaccounted for(5) to work its way through the food chain without forcing a recall! And far worse, after knowing that Aventis had co-mingled its GM corn with non-GM corn, the US agriculture Department lifted restrictions for its export!(6)
This suggests a clear abdication of the due diligence obligation for which the US is liable under international customary law of State responsibility to prevent harm to the territory and nationals of other countries. As a result of the USDA now authorising the export of GM corn, ostensibly for feed, there is a clear violation of the due diligence obligation. Aventis has been quick to cash in. Agribusiness executives, not knowing what to do with the rejected StarLink corn, were as of end of October travelling to South America, Europe and Mexico to off load the contaminated corn. The largest importer, Japan was off limits, after its Ministry of Agriculture warned the US that it would not accept any corn containing StarLink.
There was also a procedural obligation on the US to inform other countries of the risk that the export of the GM corn presented to their environment and to human health. And to consult and, if necessary, negotiate with the importing countries about the risks posed by the export of the GM corn. This procedural obligation too the US has clearly breached.
THE STANDARD OF LIABILITY
The liability could be strict (that is without proof of fault) or only upon proof that the State was not negligent in allowing the limited approval, the entry of the GM corn into the food chain and the export of the GM corn.
The evolving practice of States suggests that for ultra-hazardous activities, strict liability is the governing standard in international law. There is a growing respectable scientific concern that GM foods are intrinsically ultra-hazardous. Even if the incidence of any harm occurring may be low, the magnitude of the harm, once it takes place, could be incredibly great. The StarLink case demonstrates this potential impact convincingly. Agricultural lands and systems could be impaired by the contamination. Farmers reliant on growing corn could face loss of livelihood. Human health could be irreparably compromised not just by the allergies from the GM corn but, as well, by the scourge of new diseases and people developing resistance to antibiotics because of the consumption of GM food which incorporates antibiotic resistance markers. The potential costs arising out of harm caused by genetically modified organisms (GMOs), in a worst case scenario, could easily run into millions The movement of these GMOs, through trade, to parts of the world with knowledge that these countries lack the capacity to assess the technology and its products adequately and put in place measures to deal with them safely, makes the transboundary activity ultra hazardous as well.
THE PRESENTATION OF THE CLAIM
This will have to be done by the affected State against another State and the claim will be resolved between States.
THE PROBLEMS OF MAKING A CLAIM
· The lack of international fora to prefer claims;
· The difficulty of identifying the precise nature of the obligation breached;
· The uncertainties and delays, in international court proceedings, if these can be brought;
· The evidentiary problems of proving damage;
· The difficulty of resolving highly technical and scientific aspects of the problem;
· The additional delays for claims by injured individuals and other non-State bodies;
· The uncertainties as a result of the unsettled nature of various aspects of much of international customary law.
PARTIES AFFECTED MAKING CLAIMS AGAINST THE STARLINK REGISTRANT, ETC
Parties affected, whether State or individuals, could consider filing a claim against StarLink for the damage that has occurred thus far, such as the removal costs, and other associated economic loss. But again there are problems? Where would the claim be filed? Against whom? Big agribusiness conglomerates are involved in shipping the corn to overseas market. Archer Daniels Midland Co and Cargill Inc are clearly involved. In fact, ADM executives have been quoted as saying that their shipments of StarLink corn will be travelling to South America, Europe and Mexico. Who is the ‘polluter’ in this case against whom a liability claim will lie? What is the measure of damages? Will this damage (such as economic loss) be recoverable under the jurisdiction where the claim is filed? And on what basis, and applicable law, will the claim be adjudicated? Finally there will be the question of whether any judgement obtained would be enforceable and the claim actually paid. A host of procedural and technical court rules may need to be overcome first.
These difficulties may be insurmountable. For example in 1989 an UK corporation and its US agent sued an UK corporation for shipping copper residues to it for reclamation without disclosing the presence of organic chemicals. The UK court dismissed the claim on the ground that all the defendant’s actions occurred in the US. The US court dismissed the claim on the ground that the claim failed to meet US statutory requirements, namely, there was no clear allegation of a violation of a law of nations or treaty law, and, there was no provision in the law under which the action was filed for a remedy in respect of acts causing imminent and substantial endangerment abroad. The upshot was that the aggrieved was left without a remedy.
II. THE POSITION AFTER THE CARTAGENA PROTOCOL ON BIOSAFETY (‘CPB’)
The relevant obligations imposed on Parties to the Convention on Biological Diversity (CBD) which ratify the CPB are to:
· Adhere to the precautionary principle in making decisions under the Protocol;
· For GMOs intended for direct domestic use (including placing on the market) as food, feed or for processing, the party of export must post this information on the Biosafety Clearing House; there is no need for the elaborate Advanced Informed Agreement procedure which is confined only to the direct introduction into the environment of GMOs.
· Dispose of the GMOs by repatriation or destruction at the request of the State to which the GMOs have been sent without the necessary notifications and approvals under the CPB.
To some extent then Parties have accepted added obligations, the breach of which could be the basis of a claim in international law. But the US is not a party to the CBD and cannot consequently be a party to the CPB.
Even for Parties, many questions are left unresolved as regards liability and redress, such as, which of the parties responsible for placing the GMO on the market is liable: the developer of the GMO, the State that allows the approval and/or the export of the GMO, the actual exporter (could be a trading entity, like ADM or Cargill), the importing entity or State, the farmer who grows the GMO that causes the contamination of the neighbouring farms Who can present the claim? In which jurisdiction? Which law will apply to resolve the matter? How will any judgement obtained be enforced?
III. A BIOSAFETY LIABILITY PROTOCOL
Hence the need for a specific liability regime to overcome problems associated with the weaknesses in establishing liability and seeking redress in enforcing claims for environmental harms. Article 27 of the CPB contemplates the development of such a regime. What shape should this regime take? How, for example, would it provide a framework to enable effective redress in the StarLink case?
First, it should decide on the nature of the liability. Should claims be presented on a State to State basis? In this international arbitral regime the State is held liable for activities undertaken by individuals or entities. The claims process is also between individuals. This is the regime adopted by the 1972 Convention on International Liability for Damage Caused by Space Objects. Alternatively the regime opted for could be a negotiated International Private Law regime. By this an international binding agreement would require parties to enact national liability laws incorporating as a minimum elements agreed upon by the international community. The elements would include clear international liability standards such as standing to sue, burden of proof, damages that may be claimed, limits on recovery, jurisdiction over persons and entities, enforcement of judgements. The provisions could also deal with matters ensuring the recovery of compensation awarded, such as compulsory insurance and the establishment of international funds. Once accepted the liability protocol would become part of national law, either through self-execution or by national implementing legislation.
An example of such a liability regime is the Convention on Civil Liability for Oil Pollution Damage 1969 as supplemented by the International Convention on the Establishment of an International Compensation Fund for Oil Pollution and the 1992 Protocol/Convention to revise the Liability and Fund Convention.
There could be a mix of these two options as well. It is interesting that thus far in the StarLink case, the matter is being resolved on a State to State basis, at least as far as Japan and Korea are concerned. The US Department of Agriculture and Japan have reportedly signed an agreement that the USDA will test corn shipments bound for Japan starting November 15 to prevent StarLink corn from contaminating the food supply in Japan. Testing will be carried out on corn intended for human consumption.
(1) All food allergens display certain characteristics. Two of them are stability under heat and a lack of digestibility. Cry9C can remain in the gut for as long as 30 minutes.
(2) 10,000 acres were planted in 1998 and 250,000 in 1999 (TWN Information Service on Biosafety, 1.12.2000).
(3) Bill Christison, a Missouri farmer and President of the National Family Farm Coalition of the USA, Legal Issues of Biotech Questioned, in PR Newswire, November 21, 2000.
(4) Susan Hazen, Deputy Director, EPA’s Office of Pesticide Programs, as quoted in UPI’s Press International report, October 29, 2000: Dutch study: StarLink protein stimulated antibodies in lab rats.
(5) Investigations show that some 2,600 farmers planted StarLink. About 9.6 million bushels were shipped to grain elevators. Of those Aventis has tracked 4.8 million that were shipped for feed.
(6) Reuters report, 27 October 2000, US corn exporters relieved at StarLink export okay. In an October 6 letter, the UDSA had told the grain industry that ‘ StarLink corn may not be lawfully sold for use in human food or for export.’