Liability and redress (Article 27)
The Intergovernmental Committee on the Cartagena Protocol,
Recalling recommendation 2/1 adopted at its second meeting,
Recognizing the importance of capacity-building for developing country Parties, in particular the least developed and the small island developing States among them, and for Parties with economies in transition, to strengthen their capacity at the national and regional levels with regard to development and implementation of national legislative regimes, policy and administrative measures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms,
Reaffirming that information gathering and analysis on the issue of liability and redress pursuant to Article 27 of the Protocol should continue,
Having conducted an initial exchange of views on elements of the terms of reference for the open-ended ad hoc group of legal and technical experts that may be established by the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol,
1. Invites Parties, Governments and relevant international organizations that had not provided the Executive Secretary with information on national, regional and international agreements in the field of liability and redress for damage resulting from transboundary movements of living modified organisms before the third meeting of the ICCP, to do so no later than six months before the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol;
2. Requests the Executive Secretary to continue gathering information on the issue of liability and redress in international law, to update the information contained in the note by the Executive Secretary regarding the international liability regimes (UNEP/CBD/ICCP/2/3) prepared for the second meeting of the Intergovernmental Committee, and to make it available at the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol;
3. Invites Parties, Governments and relevant international organizations to submit, on a voluntary basis, to the Executive Secretary information or initial understandings on the basis of the questionnaire annexed to this recommendation no later than six months prior to the first meeting of the Conference of the Parties to the Convention serving as the meeting of the Parties to the Protocol, with a view to assisting Parties to develop understandings on issues relating to liability and redress for damage resulting from transboundary movements of living modified organisms;
4. Requests the Executive Secretary to compile the information submitted in accordance with paragraph 3 above and make it available at the first meeting of the Conference of the Parties to the Convention serving as the meeting of the Parties to the Protocol;
5. Renews the invitation that it had made in paragraph 4 of its recommendation 2/1 to Parties to the Convention, to organize workshops on liability and redress, as soon as possible but before the first meeting of the Conference of the Parties to the Convention serving as the meeting of the Parties to the Protocol;
6. Renews the invitation that it had made in paragraph 7 of its recommendation 2/1 to Parties and Governments to submit their views to the Executive Secretary on elements of the terms of reference for the open-ended ad hoc group of legal and technical experts that may be established by the first meeting of the Conference of the Parties serving as the meeting of the Parties no later than six months prior to that meeting;
7. Requests the Executive Secretary to compile the views submitted by Parties and Governments in accordance with paragraph 7 of recommendation 2/1, on terms of reference for the open-ended ad hoc group of legal and technical experts that may be established by the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol, and prepare a synthesis report based on these views, for consideration at that meeting.
Annex
QUESTIONNAIRE ON LIABILITY AND REDRESS FOR DAMAGE RESULTING FROM TRANSBOUNDARY MOVEMENTS OF LIVING MODIFIED ORGANISMS
Notes
Nothing in this questionnaire is intended to prejudge the decision of the Conference of the Parties serving as the meeting of the Parties with respect to the process to be adopted pursuant to Article 27 of the Protocol.
The list in this questionnaire is not exhaustive. Parties, Governments and relevant international organizations are invited to raise or answer any other questions or issues that are deemed appropriate.
Questionnaire
1. What types of activities or situations covered under the Protocol are perceived as most likely to cause damage in your country and what kind of criteria are helpful in assessing damage to biodiversity resulting from transboundary movements of LMOs?
2. What types of activities or situations should be covered under the international rules and procedures referred to in Article 27 of the Protocol?
3. How should the concept of "damage resulting from transboundary movements of LMOs" be defined, valued and classified, and should this be different from the definition, valuation and classification of damage within the framework of Article 14 paragraph 2, of the Convention on Biological Diversity?
4. To whom should liability for damage resulting from transboundary movements of LMOs be channelled?
5. What should be the standard of liability for damage resulting from transboundary movements of LMOs, that is, should it be fault-based, strict or absolute?
6. Should there be any exemptions from liability? If so, under what circumstances?
7. Should the liability be limited in time and, if so, to what period?
8. Should the liability be limited in amount and, if so, to what amount?
9. How would judgments given pertaining to liability and redress be recognized or enforced in another country/jurisdiction?
10. What would be the relevance of arbitration in settling disputes arising with respect to damage in the field of liability and redress?
11. What purpose would the notion of State liability and State responsibility serve in a liability and redress regime within the framework of the Cartagena Protocol?
12. Who should have the right to make claims for damage resulting from transboundary movements of LMOs?
