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Difficult Compromise: Basic Decision on Genetic Engineering Liability


Bonn, Germany - The Cartagena Protocol on the transboundary movement of genetically modified organisms (GMOs) will be revised by 2010 to include legally binding rules on liability and redress for damage to biodiversity. This is the basic path agreed on today by the 147 parties to the international convention at the 4th meeting of the UN Conference on Biosafety (MOP 4) in Bonn. However, many questions concerning the details remain unanswered.

"At times during the negotiations we reached a point that would have meant failure,“ says Ursula Heinen, the Chairman of the conference and Parliamentary State Secretary at Germany’s Federal Ministry of Agriculture (BMVEL), summarising the marathon five days of discussions with 2000 delegates. Reports from among the participants revealed that until the last minute Japan had blocked any progress by refusing to accept any kind of legally binding agreement on liability. Only massive diplomatic pressure persuaded the Japanese delegation to come round to the idea in a late-night session.

What has now been agreed is that provisions will be added to Article 27 of the Cartagena Protocol to prescribe how liability and redress are to be managed in the case of damage to biodiversity caused by genetic engineering. The alternative model of mutual recognition of national, civil law decisions by all parties was rejected for the most part.

Among other things, the European Union had objected to intervention in state civil law. The MOP4 final document leaves a grey area on this point, however. It does not rule out the possibility of individual civil law elements being declared binding in the future. This is just one of the many ambiguities that technical and legal experts are to clear up over the next two years. There are likely to be additional expert meetings in Mexico and Malaysia for this purpose, as Ahmed Djoghlaf, Executive Secretary of the UN Convention on Biological Diversity (CBD), explained.

The experts are to clarify how damage to biodiversity is identified, evaluated in financial terms and compensated. What is clear is that the burden of proof will lie with the injured party. The injured party will have to prove the causative link between the use of GMOs and the biodiversity damage claimed. Then the injured state will be able to claim damages from the party responsible for the environmental damage. For developed industrial nations, this means practically no change to the status quo, according to an expert involved in the negotiations. Developing countries in particular, however, would gain legal certainty vis-à-vis GMO-exporting states by ratifying the revised Cartagena Protocol. The voluntary commitment proposed by six biotech companies was discussed at the conference, but did not meet with any appreciable support.