International treaty on damage caused by genetically modified organisms in sight

The next few months may see the birth of an international treaty on liability and redress for damage caused by genetically modified organisms.

Lim Li Lin and Lim Li Ching

AFTER almost 10 years of debate over a legally binding instrument for liability and redress in respect of genetically modified organisms, there are expectations that a new treaty will be up for adoption at the fifth Meeting of the Parties to the Cartagena Protocol on Biosafety in October in Nagoya, Japan.

(The Cartagena Protocol uses the term 'living modified organisms' (LMOs) for what is commonly known as 'genetically modified organisms'. The Protocol is a treaty under the Convention on Biological Diversity that was adopted in 2000 and entered into force in 2003. There are currently 153 Parties.)

While the years of negotiations have taken their toll and the final outcome would be watered down from what the overwhelming majority of developing countries first envisioned, a Supplementary Protocol to the Cartagena Protocol would be a historic first step towards practically addressing damage from LMOs. Meanwhile the door is still kept open for addressing civil liability more comprehensively in the future.

A negotiating group (known as the 'Group of Friends of the Co-Chairs Concerning Liability and Redress in the Context of the Cartagena Protocol on Biosafety' (FoCC)) that met in Kuala Lumpur, Malaysia on 8-12 February has requested the Executive Secretary of the Convention on Biological Diversity to communicate to the Protocol Parties the text for a Supplementary Protocol on liability and redress for damage resulting from transboundary movements of LMOs.

The text of any proposed protocol has to be communicated to the Parties by the Secretariat (that serves both the Convention and the Cartagena Protocol) at least six months before its adoption. The meeting of the Group of Friends of the Co-Chairs in Kuala Lumpur was the last negotiation session scheduled at least six months before the Meeting of the Parties in Nagoya. The proposed text still contains many square brackets (indicating areas of disagreement).

Further negotiations are scheduled to take place in Montreal on 17-19 June. There is talk of the possibility of an additional three to five days' meeting prior to the Meeting of the Parties in Nagoya, subject to agreement by the host government, Japan.

Basis for negotiations

The FoCC's Kuala Lumpur meeting, and its previous meeting in Mexico City in February 2009, came after the very difficult 2008 Bonn negotiations that nearly collapsed and a group of Like Minded Friends emerged 'representing those countries whose position is that an international instrument on liability and redress should have binding elements on civil liability' (see box).

Because there have been strenuous objections from several Parties to having international substantive rules for civil liability whereby victims of damage from LMOs can turn to national courts for redress, the Like Minded Friends grouping, led by Malaysia, had put forward a proposal in Bonn, saving those negotiations from collapse. The grouping comprised around 80 developing countries (including all of the African Group) and Norway.

The proposal by the group was the basis for the Bonn agreement to continue the negotiations. It essentially said that the international liability and redress regime would be legally binding and would comprise administrative approaches, whereby liability would be a matter to be resolved between the liable entity and the executive arm of a government, via 'response measures' that address damage. The regime would also contain one provision on civil liability that would:

(1) preserve the right of Parties to put in place domestic laws and policies on civil liability and redress which should include elements as stipulated in guidelines to be negotiated;

(2) provide for reciprocal recognition and enforcement of foreign judgments; and

(3) provide for a review of the guidelines after the entry into force of the instrument with a view to consider making them binding or elaborating a more comprehensive binding regime on civil liability.

('Response measures' are defined in the text and can be summarised as actions to avoid, minimise, contain or mitigate damage, as well as to restore biological diversity. If the concept of 'imminent threat of damage' that is still under debate were to be included in the Supplementary Protocol, response measures would also entail taking the necessary preventive measures.)

It was agreed that this would be the basis for further negotiations.

The proposal by the Like Minded Friends was itself already heavily compromised, given that most developing countries and Norway have been firmly behind a comprehensive binding civil liability regime, and had argued for this throughout the years of negotiations.

In Mexico City last year, it was agreed that the form of the legally binding instrument would be a Supplementary Protocol to the Cartagena Protocol. Additionally, there is text on civil liability guidelines, additional and supplementary compensation measures and complementary capacity building measures.

However, this agreement to have a legally binding instrument on administrative approaches with one provision on civil liability continues to be undermined by Parties that still resist such an instrument.

Therefore the clauses on civil liability to be included in the legally binding Supplementary Protocol proved to be the most contentious during the Kuala Lumpur meeting. Most of the last few days of the meeting were closed to advisers and observers as the FoCC group continued to work late into the night on the contentious issue of this one provision on civil liability.

Civil liability and types of damage

In the first instance, the European Union (EU), Japan and Paraguay attempted to roll back the Bonn agreement, by indicating their unwillingness to work on text that originated from the compromise proposal put forward by the group of Like Minded Friends.

After protracted discussions, the FoCC agreed to work on the basis of that text, on a 'provisional basis'. The text later developed further, with a separation between how to address damage, as defined in the Supplementary Protocol (i.e. damage to the conservation and sustainable use of biodiversity, taking into account risks to human health), and how to address damage other than that as defined in the Supplementary Protocol (i.e. traditional damage).

While there was general agreement over language implementing the Supplementary Protocol and addressing damage to biodiversity, including through civil liability approaches, similar language dealing with traditional damage proved more controversial.

The negotiations essentially turned on whether civil liability, as relating to so-called traditional damage, should be mandatory or not.

Unable to resolve the deadlock, a smaller group was tasked with further negotiating the text on traditional damage. The small group comprised two representatives each from the EU and Japan, as well as Malaysia and three others (two from Africa and one from Latin America and the Caribbean). The small group worked late at night on 11 February to produce text that called for Parties to assess whether domestic law provides for adequate rules and procedures for traditional damage, and to consider several options for applying civil liability approaches.

When the small group presented their negotiated text to the FoCC group on the last morning (12 February), the EU reportedly attempted to further water down the text. The African Group objected strongly and proceeded to hold its ground, calling for stronger provisions on the issue. To try and resolve the dispute, a 'trilateral' consultation was held, among the EU, Japan and the African Group.

The resulting text, now contained in Article 13.2 of the Supplementary Protocol text, remains bracketed, and reads as follows:

'[2. Parties [should][shall][may] assess whether their domestic law provides for adequate rules and procedures on civil liability for material or personal damage incidental to the damage as defined in Article 2.2(c) and consider:

(i) applying their existing domestic laws, including where applicable general rules and procedures on civil liability;

(ii) applying or developing civil liability rules and procedures specificallyfor this purpose; or

(iii) applying or developing a combination of both.]'

The African Group reserved its right to re-visit the wording of this paragraph and this is reflected in a footnote of the text.

The clauses on recognition and enforcement of foreign judgments, and the right of Parties to take into account the guidelines on civil liability when developing their domestic legislation or policy were also deleted.

The next step is for the Co-Chairs to prepare draft guidelines on civil liability based on Appendix II of the Kuala Lumpur meeting report which contains proposed operational text for working towards non-legally binding provisions, and circulate them to the FoCC group prior to their next meeting.

Review

Closely related to the clause on civil liability are the provisions that deal with review (Article 14). The Like Minded Friends had proposed a review clause as part of the compromise language in Bonn, essentially to ensure that the guidelines on civil liability be reviewed, with a view to consider making them binding or elaborating a more comprehensive binding regime on civil liability.

At the Mexico City meeting in February 2009, the EU insisted that the review clause in the text should be about enabling an evaluation of the effectiveness of the Supplementary Protocol, and not be a review of the civil liability guidelines as such, as the latter are not part of the Supplementary Protocol.

As a result of the disagreement, compromise text was worked out, in which Article 14 comprised two parts: (1) a review of the effectiveness of the Supplementary Protocol, and (2) the inclusion in the review of a consideration of further and necessary steps or whether further steps are necessary, to provide for an effective civil liability regime on liability and redress. This text in brackets was discussed at the Kuala Lumpur meeting.

The first paragraph of Article 14 on the review of the effectiveness of the Supplementary Protocol was not controversial. However, problems arose regarding the second paragraph that brought in the necessity of a civil liability regime.  The EU tried to subvert this concept by introducing language that called for a consideration of specific instances of damage and related response measures.

While not objecting to that proposal per se, countries like India and Malaysia stated that the second paragraph of Article 14 must relate to civil liability in the Supplementary Protocol, in that the review must assess whether, and if so, how, Parties deal with civil liability in the future.

Malaysia reminded the EU that the current Article 14 text was a compromise that was introduced in Mexico City after an impasse, and that for the countries that had wanted a binding civil liability regime the review remained an important component of their agreement to a 'watered down' civil liability regime and the guidelines.

The text that was eventually adopted reads as follows:

'The Conference of the Parties serving as the meeting of the Parties to the Protocol shall undertake a review of the effectiveness of this Supplementary Protocol five years after its entry into force and every five years thereafter, provided information requiring such a review has been made available by Parties. The review shall be undertaken in the context of the assessment and review of the Protocol as specified in Article 35 of the Protocol, unless otherwise decided by the Parties to this Supplementary Protocol. The first review shall include a review of the effectiveness of Article 13.'

By the end of the meeting, the FoCC group adopted 15 out of 25 of the Articles of the draft Supplementary Protocol. This amounts to over 60% of the draft Supplementary Protocol.

Next steps

However, a number of contentious issues still remain outstanding, including the inclusion of 'imminent threat of damage'; the definition of 'operator'; the inclusion of 'products thereof' (i.e. products of LMOs) in the scope of the Supplementary Protocol; the provision of financial security; and the issue of consistency of the Supplementary Protocol with other international obligations and laws.

These remain unresolved because of the strongly held positions of Parties and may well prove to be deal breakers.

The next meeting scheduled for June in Montreal will thus be under pressure to resolve all the difficult issues before Nagoya.

Pending a more comprehensive international system, countries can in the meantime enact strong liability and redress provisions in their national laws.                                     

Lim Li Lin and Lim Li Ching are researchers with the Third World Network.

*Third World Resurgence No. 234, February 2010, pp 6-9