Developing countries need to urgently develop national legal and administrative regimes if they are to protect their countries from impact of transboundary movements of Living Modified Organisms (LMOs).
In his report to the third Intergovernmental Committee for the Cartagena Protocol on Biosafety (ICCP3), Mr. Hamdallah Zedan the Executive Secretary of the Secretariat of the Convention on Biological Diversity (CBD), said that except for some general regulations concerning gene resources, there is not an appropriate system to address LMO activities in many countries, particularly in developing ones.
He called for assistance and capacity-building to help developing countries develop their national monitoring, control and legal framework to prevent risks to human health and adverse effects on the environment.
Liability and redress mentioned under Article 27 of the Cartagena Protocol on Biosafety seems to be a new issue to many countries and it is evident that very few countries have litigation under their liability laws concerning LMOs.
Looking at the national measures in the field of biotechnology and redress for damage resulting from transboundary movement of LMOs, it is evident that the national legislations deal with liability rules relating to LMO activities in a broad context, rather than specifically focusing on liability and redress for damage resulting from transboundary moments of LMOs.
Analysis of the national regimes submitted to the CBD secretariat suggests that countries have taken different approaches to address liability and redress concerning LMOs.
For example, some countries have employed a sector approach, where liability provisions are introduced and inserted into the existing legislations for sectors of genes or biotechnology. The provisions on liability are then adjusted to meet the specificities of LMOs.
Most countries seem to have adopted a horizontal approach on which no distinction is made in applying the liability law between LMOs and other industrial activities.
On the other hand, some countries seem to provide the liability rules in their legislation on gene technology by simply establishing a clear link to the existing domestic liability regimes such as the law on compensation for environmental damage, as well as the liability on the product.
It was pointed out that the liability issue in the area of LMOs should not be treated differently from that applied to other related areas for the sake of consistency and coherence, nor is it necessary to take the existing legal regimes to address the damage incurred by LMOs.
In regulating LMOs, the majority of national legal systems operate through both civil and administrative mechanisms. Under civil systems, some countries have enacted specific laws to provide a basis for claiming compensation for environmental damage
Examples are the Danish Act on Environmental Damage, the Finnish Act on Compensation for Environmental damage and the Norwegian Pollution Control Act.
In Denmark, LMOs are included in the list of public and commercial activities to which the Act on compensation for damage to the environment applies.
The coverage of the activity is further defined as enterprises, which are subject to the obligation to obtain an approval for the manufacturing of genetically modified organisms according to the Act on Environment and Gene Technology.
The Finnish Gene Technology Actcovers a wide range of LMO-activities. The Act applies to the use of production, import, sale or other placing on the market of LMOs and products containing them, as well as to the launch and operation of installations and premises intended for the handling of LMOs.
The Norwegian Gene Act also deals with all LMO-related activities, including substances and products that consist of or contain LMOs.Where LMOs are legally released into the environment, the liability still arises if the risk to human health or the environment is greater than foreseen when the use of LMOs was approved.
The Australian Gene Technology Act regulates dealing with LMOs in which, among others, it prohibits dealing with LMOs, e.g, import, transport, research, manufacture, production and propagation.
In Australia, unless in accordance with the legislation, all dealings that involve the intentional release of LMOs into the environment must be licensed.
At the administrative level, a typical characteristic is the use of administrative licensing or authorisation such as the gene regulator.
In Australia or supervisory authority in Norway, to administer the implementation of laws and in case of occurrence of damage, to order the polluters must take actions or the authority itself will take measures to prevent other damage and restore environment.
The reports submitted to the CBD on national laws show to a large extent that the basic standard to apply to LMO-related activities is strict liability, where liability is engaged regardless of fault.
In the Danish Act on Environmental Damage, all the activities identified in the list of the Act are subject to strict liability.
The German Genetic Engineering Act focuses on the sheer risk posed by LMOs whether or not the person responsible for the genetic engineering is at fault.
The Norwegian Act on the other hand lays down strict liability ¡° for damages regardless of any fault on his part when the activity causes damage, inconvenience or loss by deliberate release or emission of LMOs into the environment.
Countries with strict liability regimes in force allow a limited number of exemptions from liability. In general, these exemptions relate to cause, where damage has been caused by or through events and situations beyond the control of the operator.
According to the Austrian Law on Genetic Engineering, the following cases are excluded from liability: military conflicts, civil wars and natural disasters, damage caused by a third party not involved in the use or deliberate release of LMOs and intending to cause damage or action taken in compliance with the legal provisions, instructions or coercive measures.
Other countries have similar provisions. For example in Denmark, the intervention, connivance or negligence of a third party or the victim will mitigate or cease liability.
A compulsory order of a public authority is specified as an exemption form liability. However, prior permit does not necessarily exclude liability.
In the Norwegian legal system, if unforeseen damage occurs or even caused by lawful activities, the compensation provisions will nevertheless apply.
All the national systems studied have introduced administrative mechanisms in dealing with LMO activities and the damage caused.
The licensing and monitoring systems in the legislations provide the authorities with considerable powers to control LMO activities and take action to protect or restore the environment by either ordering remediation or cleaning up themselves and reclaiming the cost. These powers are also supported by administrative charges for non-compliance.
For example, the Australian Gene Act establishes ¡° a statutory officer, the Gene Technology Regulator, to administer the legislation and make decisions under the Act, including issuing of licences¡±. Extensive monitoring and investigation powers have been given to inspectors.
Where the Regulator incurs costs as a result of taking steps in order to avoid imminent risk of death, serious illness, series injury or serious damage to the environment, the person who creates the risk is liable for these costs.
The supervisory authority under the Norwegian Act may order the person responsible ¡° to retrieve or take other measures to combat the organisms within a specified time, including measures to restore the environment to its previous state as far as possible.
Belgium has enacted various administrative statutes to ensure an effective clean-up, which relies on compelling restoration orders given by public authorities and less on litigation.