Shortcomings of the Cartagena Protocol: resolving the liability loophole at an international level.

• Author: Kohm, Katharine E.

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.

1. 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. Currently, the Cartagena Protocol requires an Advanced Informed Agreement (AIA) between parties wishing to import or export LMOs. The Protocol also establishes a Biosafety Clearinghouse for exchanging information about the use of LMO technologies and the execution of the Protocol. (17) But the parties have yet to adopt a comprehensive liability regime.

Prior literature on the Cartagena Protocol has focused attention on these ratified sections of the international agreement, especially the AIA. (18) Other articles have examined free trade concerns (19) and causes of action for environmental damages based in tort under the Cartagena Protocol. (20) But the literature largely fails to examine the best way to create a liability regime within the construction of the Cartagena Protocol or evaluate the most recent strides the Protocol's drafters have made toward this goal. (21) This Comment fills the literature gap by investigating how a liability regime under the Cartagena Protocol would mitigate potential biodiversity, environmental and human health problems posed by LMOs. Additionally, this Comment examines how other civil liability regimes should guide the design of a regime under the Protocol. Finally, this Comment evaluates previous efforts to adopt such a regime.

Part II describes in more detail the concerns presented by LMOs, the Cartagena Protocol's response to these concerns and the reasons a liability regime is necessary. Part III examines the major decisions the Cartagena Protocol parties will have to make before adopting a civil liability regime. Part IV explores three predecessor civil liability regimes and highlights aspects that the parties should include in any regime under the Cartagena Protocol. Part V proposes that the best option for redressing victims and preserving biodiversity is mitigated-strict liability with a supplementary, compensatory fund. Part V also compares this proposal to current negotiations by the Cartagena Protocol's Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress ("Liability Working Group"). Finally, Part V concedes that the best regime is not the most politically feasible regime and concludes that amassing the necessary support for ratifying this Comment's proposal is unlikely. The Comment concludes by suggesting that the Cartagena Protocol's Conference of Parties should strive to adopt a milder, more politically feasible liability agreement.

II.

THE TRANSPORT OF LIVING MODIFIED ORGANISMS (LMOs) REQUIRES A LIABILITY REGIME TO MANAGE POTENTIAL RISKS

States demanding strong LMO regulation maintain that biotechnology is far too new and untested to adequately predict its long term effects on humans and the environment. (22) The opposing viewpoint argues that agricultural biotechnology offers immense benefits and stunting the furtherance of genetic techniques due to unproven risks is too conservative. (23) The logical compromise between these viewpoints is to tolerate some risk in the interest of proven benefits, but establish a liability regime to offer redress in case suspected risks are realized. Leaving redress to the mechanisms of international "common law" is a paltry consolation to a ratifiable regime and is not advisable. (24)

1. Risks Presented by LMOs

   The goal of agricultural biotechnology is to develop robust plants that can ward off insects while withstanding disease, cold, heat, drought and flood without the aid of pesticides. (25) Scientists accomplish this by inserting DNA containing desired traits into conventional plants. (26) This bonus DNA may come from any number of species, not just other plants. (27) For example, scientists have taken strands of DNA from a fish that survives comfortably in cold waters and used them to promote frost resistance in crops. (28) The DNA insertion process requires carrier viruses that can access the host plant's nucleic DNA and make a genetic substitution. (29) Alternatively, the desired genes can be applied to microscopic pellets of gold or tungsten that are fired into the host plant's cells and then replace the plant's original nucleic DNA. (30) Although genetic superiority creates more resilient plant species, the benefits are not without risk. These risks include harm to both the environment and human health.

   1. Environmental/Biodiversity Effects

      LMOs present a considerable biodiversity concern. (31) Genetically engineered crops are intended to be more resilient than both their conventional counterparts and other neighboring biota. The drawback to this genetic superiority is the possibility that LMOs may grow out of control and stifle the habitats of other native organisms. (32) Also, artificially inserted genes are likely to appear in traditional crops through unintentional crossbreeding caused by pollen drift (33) and negligent farming practices. (34) These unintentional crossovers can dilute genetic diversity within native species, ultimately eliminating natural populations of plants. (35) The loss of native species and natural genetic variations within species limits biodiversity, which may cause unknown ecological consequences. (36) Additionally, widespread LMO use could eventually result in crossover mutations in native plant and insect populations, creating super-weeds or super-pests (37) and rendering agricultural pesticides or herbicides useless. (38) Currently, only isolated instances of transboundary crossovers have been reported, but these may foreshadow greater, more widespread harms to biodiversity. (39)

   2. Human Health Effects

      Human health effects from GMOs have caused less alarm in the scientific community than the biodiversity risks have, (40) but this has not changed the popular stigma associated with Frankenfoods. (41) The two major human health concerns are antibiotic resistance (42) and increased allergens in GMO foods. (43) There is little scientific evidence, however, that government-approved GMO products pose...