Article 27 of the Cartagena Protocol on Biosafety (“Protocol”) mandates parties to the Protocol to 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 transnational movements of living modified organisms (“LMO”). At its first meeting, the Conference of the Parties established an Open-ended Ad Hoc Working Group of Legal and Technical Exports on Liability and Redress (“Working Group”) to examine available information and elaborate options for elements of international rules and procedures on liability and redress under the Protocol to fulfill the mandate under Article 27 of the Protocol.
This paper reviews and analyses major legal issues including possible approaches to liability and redress, choice of instrument, residual state liability, standard of civil liability, definition of operator, definition and scope of damage, supplementary compensation scheme, supplementary capacity building, settlement of disputes which have been highly controversial among parties to the Protocol in the negotiation of making international rules on LMO liability. International rules on LMO liability can play an important role to prevent in advance the possible damage to be caused by transboundary movements of LMO. They also may provide appropriate and effective remedies for the victims after the unexpected damage occurs. In brief, international rules on LMO liability can play very important functions: “preventive and reparative” functions.
In this context, this paper supports “legally binding international rules” on liability. Internationally harmonized rules may facilitate more effectively free trade of LMO. Without legally binding international rules on liability, each country may adopt its own different national rules. Too much diverse rules on liability may form trade barriers which may cause the unforeseeability and unpredictability, and undermine legal order of free trade. Without harmonization of national rules based on legally binding instruments, we cannot guarantee the expansion of transactions of LMO.
Like legally binding international rules on liability, “strict liability” may force operators to take more precautious and effective measures to prevent the potential damage to be caused by transboundary movements of LMOs. Strict liability is, therefore, more useful for effective prevention, and is consistent with precautionary principle under Biosafety. It should be noted that current trends in international environmental law focus on preventing rather than remedying damage.
In consequence, this paper concludes that legally binding international rules on liability and strict liability system may prevent more effectively the potential risk of LMO on human health and the environment, and also contribute to facilitating international transactions of LMO.