ENB @ WGLR-2; 20-24 February 2006; Montreal, Canada

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Highlights for Wednesday, 22 February 2006

On Wednesday, 22 February, the second meeting of the Ad Hoc Open-ended Working Group on liability and redress in the context of the Cartagena Protocol on Biosafety continued discussions on options for elements of rules and procedures referred to in Article 27 of the Biosafety Protocol. In the morning, delegates considered new operational text on the scope of damage and addressed possible approaches to channelling liability, concluding that there is no need to formulate special rules on state responsibility under Article 27. During the day, delegates also considered standard of liability, issues relating to civil liability and limitation of liability.

Above photo L-R: The dais during the morning plenary with Dan Ogolla (CBD) Co-Chair René Lefeber (The Netherlands), Co-Chair Jimena Nieto (Colombia), Worku Damena (CBD) and Rapporteur Maria Mbengashe (South Africa)

SCOPE OF DAMAGE:
Delegates considered a new operational text on the scope of damage resulting from transboundary movements of LMOs, prepared based on submissions from the participants. Co-Chair Lefeber reminded that the text was not a negotiation text.
Functional scope:



On functional scope of damage, Malaysia , on behalf of the Asia and the Pacific group, suggested adding reference to products of LMOs in the operational text regarding the damage resulting from transboundary movements of LMOs. Above photo: Gurdial Singh (Malaysia)	Washington Biotechnology Action Council questioned whether the wording “origin in a transboundary movement” is intended to include handling before the shipment. Above photo: Philip Bereano (Washington Biotechnology Action Council)

POSSIBLE APPROACHES TO CHANNELLING OF LIABILITY:

Delegates discussed possible approaches to the channelling of liability, focusing on four main options identified in the Co-Chairs’ summary: state responsibility (for internationally wrongful acts, including breach of obligations of the Protocol); state liability (for acts not prohibited by international law); civil liability; and administrative approaches based on allocation of response measures and restoration measures.

State responsibility:

Co-Chair Lefeber raised the question as to whether special rules need to be developed on state responsibility, or whether the existing rules of international law are sufficient.

Argentina argued that there is no need to formulate special rules on state responsibility under Protocol Article 27.

Above photo: Carolina Dones (Argentina)

Switzerland suggested adding a provision that the rules developed under Protocol Article 27 are without prejudice to general rules of international law.

Above photo: Jürg Bally (Switzerland)



Senegal said that States are responsible for the security of their citizens and highlighted the role of information when authorizing the import of LMOs. Above photo: Papa Méïsa Dieng (Senegal)	Trinidad and Tobago, said channelling responsibility to importing States that rely on information they receive during authorization process “would be harsh.” Above photo: Nievia Namsundar (Trinidad and Tobago)	Namibia stressed the need to distinguish between the responsibility of importing and exporting States. Above photo: Chris Nghaamwa (Namibia)

STANDARD OF LIABILITY AND CHANNELLING OF LIABILITY:

Austria, for the EU, said that strict liability should be the point of departure and explained that its position on this issue is guided by several considerations, including the polluter-pays-principle and that any regime should be workable and effective, including an effective remedy.

Above photo: Thomas Loidl (Austria on behalf of the EU)

Mexico and others agreed that liability should be strict.

Above photo: Margarita Palafox (Mexico)

The US said liability should be fault-based, explaining that in other regimes applying strict liability the hazard in question is ubiquitous, whereas with LMOs the potential hazard depends on the receiving environment.

Above photo L-R: Kathryn Youel Page and JP Passino (US)

Channeling of Liability:



Iran said that liability should be channelled to the exporter. Above photo: Nemat Khansari (Iran)	Palau said liability should be channelled to multiple persons, and did not support state liability. Above photo: Jeffrey Beattie (Palau)	Public Research and Regulation Foundation (PRRI) stressed the importance of clearly defining the producer and polluter, and noted that while the licensor of a technology can be easily identified, how a technology is used lies beyond their control. Above photo: Julian Kinderlerer (PRRI)

Exemptions to or mitigation of strict liability:



Lesotho and others supported the option of “possible exemptions to or mitigation of strict liability” only in circumstances of acts of force majeure and war or civil unrest. Above photo: Sempe Moshoeshoe (Lesotho)	Greenpeace International stressed that any exemption from strict liability may encourage the shifting of risks and eventually escaping liability. Above photo: Duncan Currie (Greenpeace International)	Global Industry Coalition (GIC) highlighted that numerous academic and government institutions are engaged in research on the safety of biotechnology, and said that relevant information is available on the Biosafety Clearing-House website. Above photo: J. Thomas Carrato (GIC)

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