Cartagena Protocol on Biosafety - Correspondence with Secretariat of the Convention on Biological Diversity
Submission of the Government of Australia
Responding to request for views on terms of reference for an ad hoc group of legal and technical experts
(para 7, recommendation 3/1)
‘The Conference of the Parties serving as the meeting of the Parties, shall at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures […]’.
Australia supports a four stage process for consideration of liability at first meeting of the Conference of the Parties serving as the meeting of the Parties (COP-MOP-1).
Stage 1: terms of reference for an experts group to examine specific threshold questions relating to liability and redress within a specified timeframe should be developed.
Stage 2: an experts group should be established.
Stage 3: the experts group should report back to the Parties and its findings should be debated.
Stage 4: Parties should only then consider the issues arising from the experts group or task the experts on a new set of issues.
In keeping with this staged approach, Australia supports COP-MOP-1 identifying terms of reference for an experts group. The experts group should not have an ‘open-ended’mandate. The group should be tasked by COP-MOP-1 to examine and report back on specific threshold questions. If the Parties do not provide strong guidance and seek information about threshold issues, the experts group could develop its own work program and be open to influence that go beyond what Parties had envisaged or intended.
Australia supports a limited and focused set of terms of reference for experts to consider designed to explore threshold issues, such as identification of:
- the nature of damage under the Protocol;
- the scope and nature of what constitutes damage;
- the onus of responsibility;
- what constitutes liability, especially on questions of biotechnology;
- what redress is envisaged;
- how responsibility should be apportioned;
- issues involved in insurance such as time limits for liability, extent of liability and assignment of liability
Until these elements are clarified, discussion on the means of applying liability (financial and time limits; insurance) is premature.