The Liability Issue in Biosafety Protocol

Greenpeace International, January 2000

Who pays if something goes wrong with a genetically modified organism (GMO)? If a GMO harms the environment or a farmer's livelihood, or human health, who should pay compensation and be responsible for the legal consequences?

The debate on liability in the Biosafety Protocol has centred on the issue of whether the Protocol should even include clauses on liability and compensation. It is also unclear what these clauses should cover and who is liable – the biotechnology company which developed the GMO, the exporting country, the importing country, the farmer who planted the GMO, all of them or none of them?

Many countries from Africa, Latin America and Asia are extremely concerned at the possible risks of GMOs and the economic consequences of mistakes, which cannot be rectified. Following disasters such as the chemical explosion in Bhopal, India, they know that liability rules need to be established from the outset. European Union countries recently endorsed the need for rules on liability for GMOs. (1)

The insurance industry is also concerned about the huge risks involved and the scope of possible liability claims from the releases of GMOs. According to the reinsurance company Swiss Re, the risks of genetic engineering cannot be covered under traditional insurance policies.

Mistakes already made

Given the lack of scientific knowledge about the future risks of GMOs, the developing world is right to be worried. There is a possibility that releasing GMOs into the environment will result in a loss of and/or irreversible changes to biodiversity. There is also the need to deal with possible threats to human health, which include the threat of increases in the spread of antibiotic resistance.

GMOs are living organisms. They can multiply, transfer their genes and spread. They will not respect field borders or national boundaries. There is scientific evidence that gene flow is possible or even inevitable.

Farmers growing GE-free crops risk losing income when their traditional crops are contaminated by gene flow from genetically modified crops. In October 1998, Greenpeace published evidence that Novartis' GE maize had cross-pollinated an adjacent field of conventionally grown maize in the south-west region of Baden-Württemberg in Germany. At the same time the biggest farming co-operative in the region, Raiffeisen-Zentralgenossenschaft informed the farmers that it would refuse to buy GE maize. The co-operative requested GE-free guarantees from all the farmers, and threatened to sue any farmer trying to sell them GE-maize. Organic farmers are also likely to be affected by genetic contamination. Contamination of an organic crop could result in the farmer losing his organic status and in this way his livelihood.

What can liability rules cover?

The types of damage that need to be considered under a liability regime include: loss of life or personal injury; loss of, or damage to property; loss of profit and adverse effects to both the owned and the common environment.

Industry claims that liability should only apply for defective products and this should be dealt with under national rather than international laws. This has been rejected by the developing world on the whole who consider that international rules are necessary to cover harm to biodiversity, human health and socio-economic impacts from activities specifically involving GMOs and GE products.

The present negotiating text of the Protocol envisages the possibility of rules to cover liability and redress for harm from the transboundary movements of GMOs. However there are two major faults with the text. The first one is that it is likely that harm to the environment and human health will arise from a whole range of other activities involving GMOs than just transboundary movements. These activities include growing and consumption of GMOs. Secondly, negotiators have left the text unclear as to whether liability rules need to be agreed within four years from the time the Protocol is ratified or whether the process to set up rules on liability needs to start within four years.

Who should be liable?

The main discussions have focussed on whether, and to what extent, responsibility should lie with the exporting country or importing country. Many countries in Asia, Africa and Latin America, such as India, Colombia and Ethiopia expect that the country which exports the GMOs should take responsibility for any harm. They also maintain that the Protocol should allocate responsibility to the companies developing, producing and exporting the GMOs.

Greenpeace demands:

• The Biosafety Protocol should contain comprehensive rules setting out an international liability regime.
  
• These rules must cover all damage resulting from GMOs arising due to export or import, development, handling or use of GMOs and products derived from GMOs.
  
• Damage must at least cover loss of life, personal injury, and adverse effects to both private property and the common environment. It must also cover all costs of restoring damage to the environment, loss of, or damage to, property, and loss of profit.
  
• Exporting countries and companies must be liable for the products they export.
  
• There should be no exemptions or financial ceilings for liability for activities involving GMOs.

References:

(1) See declarations made by countries at the 24th June EU Environment Council.

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