Cartagena Protocol on Biosafety - Correspondence with Secretariat of the Convention on Biological Diversity

Submission of the Government of Australia

Responding for request for information or initial understandings on the basis of the questionnaire annexed to recommendation 3

(para 3, recommendation 3/1)

Australia does not support the draft questions as outlined in the questionnaire annexed to recommendation 3/1 because those questions go well beyond issues of process and preempt discussions by the experts group to be established by the first meeting of the Conference of the Parties serving as the meeting of the Parties.

Given the complexity of the issue of liability in the area of living modified organisms (LMOs), it is better use of resources to first consider any recommendations arising from the experts’group and then seek governments’views on those recommendations.

Australia does not support linking the Protocol’s consideration of liability to that taking place under Article 14 of the Convention on Biological Diversity because the scope of coverage and nature of damage are more explicit under the Protocol.

In Australia’s view, Article 27 of the Protocol does not require the establishment of a liability regime –it requires a process to be established to appropriately elaborate international rules and procedures in the field of liability and redress for damage resulting from transboundary movement of LMOs.  Parties should endeavour to complete this process within four years of entry into force.

It is important to recall that the Protocol deals with the transboundary movement of LMOs and their environmental impact.  Arguably, it is not necessary to develop a regime under the Protocol that goes beyond that transboundary movement.  National legislation should be adequate to deal with national impacts and should be better placed to deal with the environmental and legal means of redress within such jurisdictions. 

When looking at existing international liability regimes, it is important to recall that the Protocol does not regard all LMOs as dangerous.  The Protocol specifically leaves that decision to governments to determine, on the basis of risk assessments and in accordance with their national environmental circumstances.  International liability regimes that treat the transboundary movement of a good as inherently dangerous are therefore not readily applicable.