Civil liability in the context of the Cartagena Protocol: to be or not to be (binding)?

Abstract

As with most multilateral environmental negotiations, the on going negotiations for a liability and redress regime in the context of the Cartagena Protocol have proved difficult. While content issues, such as the standard of liability, the scope of the instrument, the nature of the damage and the burden of proof have dominated discussions, the question relating to the nature of the instrument has lurked quietly, but ominously, in the background. This issue came to a head at COP/MOP4 in Bonn - where the instrument was due to be adopted. This paper traces the development of the discussions on the nature of the instrument to be adopted. In particular it considers the slow rise to prominence of the administrative approach to liability at the expense of the civil liability system. This slow rise to prominence of the administrative approach leads to the adoption of a dual approach, meaning a binding instrument on the administrative approach and a nonbinding instrument on civil liability. The paper argues that the positions adopted by the various delegations on the nature of instrument illuminate the complexities of modern international environmental law making and may dispell some closely held beliefs about environmental law making, particularly as it relates to the role of the South.