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Consultative Opinion on Liability of Public and Private Actors for Genetic Contamination of Non-GM Crops

Country/Territory
International
Type of court
International court
Date
Jun 17, 2005
Source
UNEP, InforMEA
Court name
International Court of Environmental Arbitration and Conciliation
Seat of court
San Sebastian
Judge
Rehbinder
Grandbois
Odidi Okidi
Leme Machado
Morishima
Reference number
EAS – OC 13/04
Language
English
Subject
Agricultural & rural development, Cultivated plants
Keyword
GMO Liability/compensation
Abstract
The basic question in this consultative opinion was: In case of Genetically Modified Organism (GMO) contamination in non-GMOs crops, especially in absence of national legislation, who is responsible to pay the damage among all the different public and private actors involved in the GMO chain of production, distribution and dissemination? The applicant stated that he was concerned about the spreading of genetically modified organisms into traditional crops, especially without prior informed consent by the farming community. The applicant clarified that his interest concerned in particular: a) Brazil and Pakistan, where cases of smuggling of GM seeds had occurred despite a national moratorium on GMOs; b) The regime of liability in case of GM contamination in a certain country proceeding from Food Aid agencies. The court analyzed the problem of coexistence between conventional farming and GM farming, outlined basic issues of liability for GMO’s international and supranational liability regimes, examined the inadequacy of traditional liability in tort or under the law of neighbor relations as well as the new generation of GMO liability laws relating to coexistence and finally analyzed the responsibility of food aid agencies for GM contamination. It concluded that the analysis of the various liability regimes clearly showed the inadequacy of traditional tort and neighbourhood liability in tackling the complex liability issues raised by genetic contamination. The new generation of liability laws in the field of biotechnology, including genetic contamination, normally provided for strict liability and thereby removed the obstacles of fault and negligence or balancing requirements. Liability normally was civil in nature. However, there were also examples of administrative liability, especially with respect to the beneficiary of compensation and the determination of damage. Then, pure ecological damage or socio-economic damage could be covered. Under public international law, states and international organisations were in principle responsible for their food aid agencies when the latter had breached a rule of public international law and caused damage to the recipient state. However, it was highly doubtful whether the mere omission to inform the recipient state about the GM properties of food supplied would lead to responsibility. International law was quite reluctant to recognise preventive information obligations and the necessary threshold of harm may not be surpassed. The violation of the advance information obligation for GM food set forth in article 11 Biosafety Protocol by a contracting party may course give rise to responsibility under public international law if the threshold of damage was surpassed. Besides, the violation of national rules regarding the import of GM food adopted by a contracting party in implementing the protocol in national law may render the importer liable for damages under national tort law.

References

Cites
Cites

Convention on Biological Diversity

Treaty | Multilateral | Rio de Janeiro |

Keyword: Sustainable use, Subsidy/incentive, Policy/planning, Ecosystem preservation, Access and benefit sharing, Traditional rights/customary rights, Protected area, Management/conservation, Financing, Institution, Liability/compensation, Protection of habitats, Alien species, Biodiversity, EIA, Research, Monitoring, Genetic resources, Dispute settlement, Ex-situ conservation, Data collection/reporting, Technology transfer, Biotechnology, Education, Crops/grasses

Source: IUCN (ID: TRE-001148)

Cartagena Protocol on Biosafety to the Convention on Biological Diversity

Treaty | Multilateral | Montreal |

Keyword: Food quality control/food safety, Precautionary principle, Transport/storage, Biosafety, Biotechnology, Access-to-information, Sustainable use, Education, International trade, GMO, International agreement-text, Biodiversity, Financing, Packaging/labelling, Transboundary effects, Risk assessment/management, Institution, Monitoring, Liability/compensation

Source: IUCN (ID: TRE-001327)

Convention on civil liability for damage resulting from activities dangerous to the environment

Treaty | Multilateral | Lugano |

Keyword: Hazardous waste, Legal proceedings/administrative proceedings, GMO, Access-to-information, Policy/planning, Hazardous substances, Enforcement/compliance, Liability/compensation, Transport/storage, NGO, Waste disposal, Jurisdictional competence

Source: IUCN (ID: TRE-001166)

African Convention on the Conservation of Nature and Natural Resources (Revised Version)

Treaty | Multilateral | Maputo |

Keyword: Hunting gear/hunting methods, Zoning, Forest management/forest conservation, Wild flora, Access-to-justice, Wildlife products, Environmental audit, Access and benefit sharing, Military activities, International agreement-text, Capacity building, Water supply, Soil conservation/soil improvement, Hazardous waste, Transboundary effects, Research, Biodiversity, Potable water, Standards, Sustainable use, Access-to-information, Public participation, Protected area, Traditional rights/customary rights, Erosion, Monitoring, Right to clean/healthy environment, Protection of species, Protection of habitats, Water quality standards, EIA, Ecosystem preservation, Land tenure, Wetlands, Wild fauna, Sustainable development, Management/conservation, Hazardous substances, Endangered species, Genetic resources, Intellectual property rights/patents, Education, Alien species, Precautionary principle

Source: IUCN (ID: TRE-001395)