Shortcomings of the Cartagena Protocol: Resolving the Liability Loophole at an International Level

Abstract

ABSTRACT The global community has recognized the promise and peril of genetically modified organisms (GMOs). To address biodiversity and human health concerns without completely stifling the progress of biotechnology, international states ratified the Cartagena Protocol on Biosafety in 2003. The Protocol required informed consent between exporters and importers of genetically modified agricultural seeds and also planned to adopt a regime for liability and redress by 2007. To date, a liability regime for GMOS has not been adopted. This Comment explores why the Cartagena Protocol needs a binding method for redressing harm from GMOs and examines the lessons learned from predecessor civil liability regimes in other environmental contexts. Based on these evaluations, the Comment concludes that the best model for GMOs is mitigated-strict liability with a compensatory fund. I. INTRODUCTION II. THE TRANSPORT OF LIVING MODIFIED ORGANISMS (LMOs) REQUIRES A LIABILITY REGIME TO MANAGE POTENTIAL RISKS A. Risks Presented by LMOs 1. Environmental/Biodiversity Effects 2. Human Health Effects B. The Cartagena Protocol Fails to Adequately Protect Humans and the Environment Against LMO Risks C. A Liability Regime is Essential to Address LMO Risks III. CONSIDERATIONS FOR CREATING AN LMO LIABILITY REGIME IV. PREDECESSOR CIVIL LIABILITY REGIMES AND THEIR APPLICABILITY TO AN LMO MODEL A. 1999 Basel Protocol on Liability and Compensation B. Civil Liability for Nuclear Damage C. Civil Liability for Oil Pollution Damage V. AN IDEAL LIABILITY REGIME FOR THE CARTAGENA PROTOCOL AND COMPARISON TO THE LIABILITY WORKING GROUP'S CURRENT DIRECTION A. Establishing Responsible Parties and Channeling Liability B. Deciding the Standard of Liability C. Quantifying Injury and Damages D. Proving Causation VI. CONCLUSION I. INTRODUCTION Genetically modified organisms (GMOs) evoke cultural, ethical and legal concerns on a global scale. To some, GMOs are a grand achievement of science, providing solutions to malnutrition, poverty and the rising costs of food production. (1) To others, GMOs open a Pandora's Box of health risks, biological mutation and unfair trade. (2) GMO is an umbrella term that encompasses Living Modified Organisms (LMOs) and bulk commodities. (3) Both GMO types undergo genetic engineering processes to generate organisms with specific, desirable traits, but only LMOs have the ability to reproduce and grow. (4) Additionally, LMOs are more commonly transported by natural elements like wind and insects. (5) Bulk commodities are processed products made from mature organisms and are less likely to result in unintentional transboundary movement. (6) The agricultural industry often relies on LMO seeds to increase crop yield, reduce dependency on pesticides and produce a more flawless product for commercial sale. (7) Unknown to most Americans, (8) it is fully permissible to use LMO seeds in the United States, and a significant percentage of conventional produce and grain grown domestically has been genetically enhanced. (9) In the global community, however, these Frankenfoods (10) are far from unanimously accepted. Both developing and developed countries may be found on either side of the debate. (11) Although health and environmental risks from LMO crops have not materialized into widespread, tangible problems, (12) many countries approach GMOs with trepidation. (13) These countries adopt a view that genetic engineering technologies are too new and lack enough scientific evidence to prove they are safe. (14) Opponents fear that significant reliance on GMOs for food production is shortsighted given the possibility of latent, adverse effects. (15) To respect this precautionary stance and to prepare for the possibility of actual harms, the Cartagena Protocol on Biosafety (Cartagena Protocol), (16) the international treaty that regulates the LMO trade, should enact a liability regime that offers remedy and redress for any adverse health and environmental effects caused by LMOs. …