The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movement of living modified organisms, analyzing and taking due account of the ongoing process in international law on these matters, and shall endeavour to complete this process within four years.
639. Article 27 concerns the issue of liability for damage that may result from the transboundary movement of LMOs. The kinds of questions generally addressed under the heading of liability and redress include:
What types of remedy should be available for damage resulting from the transboundary movement of LMOs?
What kinds of loss or damage should be compensated?
Who should pay for such loss or damage?
In what circumstances?
Is a specific international regime required setting out rules on liability and redress for damage resulting from the transboundary movement of LMOs?
640. These issues are complex and could not be resolved during the negotiations. Article 27 therefore contains what is called an “enabling” provision. – i.e. it requires the first meeting of the COP/MOP to establish a process to consider this issue, and establishes a time-frame for this process.
641. In international law, the term “liability” is associated with the obligation to provide for compensation for damage caused by activities which pose potential risks to persons, property and the environment. In relation to certain activities, States have tended to opt to conclude international treaties establishing civil liability regimes, which “channel” liability for damage to private parties and operators (see Box 44 below).
642. In any regulatory system, rules and procedures on liability and redress perform various functions. They play, among other things, preventive and reparative functions. Current trends in international environmental law focus on preventing rather than remedying damage.
643. During the negotiation of the Protocol, the issues of liability and redress gave rise to considerable debate and disagreement. At an early stage in the negotiations, the African Group put forward a proposal for strict liability of the Party of export for any damage caused by LMOs – i.e. the Party of export would have been held liable for any damage caused by LMOs exported from its jurisdiction even if it was not itself at fault. Many developing countries viewed existing private international law as an inadequate means for ensuring redress for any damage that may be caused by the transboundary movement of LMOs. They therefore sought to include more detailed provisions on liability and redress within the Protocol. Among developed countries there were different views on this matter. Some argued that there was no need for international rules on liability for damage caused by LMOs, since these matters were or could be addressed under national law, and within the context of private international law. Others took the view that there simply was not sufficient time during the Protocol negotiations to address such a complex issue.
644. As a consequence of these disagreements, Article 27 of the Protocol is a compromise which provides an enabling provision for a process to consider the issue of liability and redress, but leaves all substantive discussions on liability and redress to the COP/MOP of the Protocol.
645. The text of Article 27 has three main elements:
(i) The COP/MOP shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movement of LMOs,
(ii) analyzing and taking due account of the ongoing process in international law on these matters, and
(iii) shall endeavour to complete this process within four years.
646. The first element imposes an obligation on the COP/MOP to adopt a process at its first meeting for the appropriate elaboration of international rules and procedures in the field of liability and redress. The form and mandate of this process has to be decided by the COP/MOP. The preparation of this issue was part of the mandate of the ICCP (see further below).
647. The expression “appropriate elaboration of international rules and procedures in the field of liability and redress” could imply that the process will consider the elaboration of substantive rules and procedures under international law and could be interpreted to exclude the possibility of leaving the matter only to national law. However, the scope and nature of any rules and procedures developed under Article 27 is, of course, a matter for negotiation within the process to be established by the first meeting of the COP/MOP.
648. The second element of Article 27 requires the future process on liability and redress to analyze and take due account of the ongoing process in international law on these matters. This may imply that some sort of a comparative analysis of the relevant international legal frameworks is required. There are a number of international agreements and relevant processes that might provide useful examples for analysis in respect of the elaboration of rules and procedures on liability and redress (see Box 44 below).
649. An additional process of potential relevance for the future negotiations under Article 27 is the examination of the question on liability for damage to biodiversity under Article 14(2) of the CBD. Article 14(2) of the CBD provides that:
The Conference of the Parties shall examine, on the basis of studies to be carried out, the issue of liability and redress, including restoration and compensation, for damage to biological diversity, except where such liability is a purely internal matter.
650. Thus Article 14(2) of the CBD addresses damage to biological diversity, however it is caused. By contrast, Article 27 of the Protocol addresses “damage resulting from the transboundary movement of LMOs”. Only damage caused by LMOs is covered by Article 27, and while this may include damage to biological diversity, it may or may not be limited to such damage. This is, again, a matter for future negotiations under Article 27.
651. Work on Article 14(2) of the CBD has been initiated by the CBD COP, and it can be expected that there will be some linkages between this work and work undertaken in relation to Article 27. The ICCP has acknowledged in its recommendation to the COP/ MOP113 that while the process under Article 27 is distinct from the process under Article 14(2) of the CBD, there is a need to identify and promote synergies and cross-fertilization between the two processes. In its decision VI/11, the CBD COP decided to establish a group of legal and technical experts to begin to consider aspects of this issue, including clarifying basic concepts and developing definitions, such as the concept of damage to biological diversity.
652. The third element of Article 27 sets out a time-frame of four years in which the “process” established shall endeavour to complete its work. While the word “endeavour” does not in itself establish an absolute deadline for completion of this work, it does at least oblige Parties to strive in good faith to finalise the process within this time-frame.
653. Article 27 is silent in relation to the final form of the product of this entire process. The nature and final content of any future liability and redress regime will be decided and resolved by the COP/MOP.
654. The ICCP adopted a recommendation for a draft decision of the first meeting of the COP/ MOP of the Protocol regarding the process to be adopted under Article 27, and requested certain additional measures to prepare for the COP/MOP's consideration of Article 27.114 The ICCP recommended the establishment of an open-ended ad hoc group of legal and technical experts to carry out the process under Article 27 (i.e. a working group open to all Parties to the Protocol as well as to observers). If the COP/MOP decides that such a working group should be established, it will also have to determine the working group's terms of reference at its first meeting. The ICCP requested views from Parties and governments to be submitted to the Executive Secretary of the CBD on elements of the terms of reference for the working group. The ICCP also recommended that the CBD Secretariat continue to gather and disseminate information on national, regional and international measures and agreements in the field of liability and redress for damage resulting from the transboundary movement of LMOs. Box 45 highlights some of the issues that have been addressed in other international regimes on liability and redress. Of course, whether and how these issues are addressed in relation to Article 27 of the Protocol remains a matter for the COP/MOP to determine. Further information on approaches to some of these issues in existing international and national liability regimes is contained in the Secretariat documentation on liability and redress prepared for the meetings of the ICCP.115
What provision, if any, should be made for judgments of courts of one country to be recognized and enforced in other countries?
113 ICCP Recommendation 2/1, UNEP/CBD/ICCP/2/15.
114 ICCP Recommendation 2/1,UNEP/CBD/ICCP/2/15; ICCP Recommendation 3/1, UNEP/CBD/ICCP/3/10.
115 See UNEP/CBD/ICCP/2/3, Liability and redress for damage resulting from the transboundary movements of living modified organisms. Review of existing relevant instruments and identification of elements. See also UNEP/CBD/COP/6/INF/5, Report of the Workshop on Liability and Redress in the context of the Convention on Biological Diversity.
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