The world is deeply divided on GMOs, with – on one side – multinational agribusiness corporations / US government / USAID / Gates Foundation pushing and promoting the export of GM biotechnology, and – on the other side – UNCTAD / UNEP / African Union / IAASTD / NGOs / CSOs / environmental organisations / consumer’s rights organisations / civil rights organisations / biodiversity organisations calling for ecological approaches that support agricultural biodiversity and strengthen seed and food sovereignty.
The pro GMO lobby has been aggressively lobbying Tanzanian Government officials to relax environmental legislation so as to speed up the introduction of GMOs. They have been pressing for the abandonment of the ‘precautionary principle’ enshrined in the Rio Declaration on Environment and Development, and the removal of the ‘strict liability’ clauses that protect citizens and the environment. Tanzanian TV reports that one or two MPs have begun calling for the legislation to be relaxed.
The International Regulatory Framework
Tanzania is one of 163 countries that signed “The Cartagena Protocol on Biosafety to the Convention on Biological Diversity” – an international agreement which aims to ensure the safe handling, transport and use of living modified organisms resulting from modern biotechnology that may have adverse effects on biological diversity, taking also into account risks to human health. It was adopted on 29 January 2000 and entered into force on 11 September 2003.” http://bch.cbd.int/protocol/
It is interesting to note that the USA along with other major exporters of GMOs refused to sign up to this international agreement. http://bch.cbd.int/protocol/parties/
The protocol commits signatory countries to set up national laws, policies and procedures to prevent or reduce the risks to biological diversity and human health as a result of the development, transport, use, transfer, or release of GMOs. It also requires countries to establish a national focal point and provide information on GMOs to a central database.
The Precautionary Approach
A central pillar of the Cartagena Protocol is the ‘precautionary approach’ which refers to a principle established by the Rio ‘Earth Summit’ 1992
Principle 15 states: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Liability under International Law
The original Cartagena Protocol (adopted 2003) failed to agree on common liability rules, however international negotiations continued and culminated in the Nagoya Supplementary Protocol being adopted in 2010. The Protocol establishes an internationally binding claim for countries importing GMOs to make the responsible producer in the exporting country liable for any possible damage caused by the imported GMOs. Especially for developing countries the treaty offers better legal compliance.
In the case that it is proven that the cultivation of imported genetically modified plants has had negative consequences for the biodiversity of a country and limits the economic exploitability, the affected country is entitled to demand redress payments or reparation of the damage. The affected importing country is responsible for proving that its biodiversity was in fact harmed and that the damage was caused by a specific imported GMO.
Under its commitment to the international agreement, Tanzania developed The Environmental Management (Biosafety) Regulations 2009. This covers the procedures for dealing with applications for the testing, risk assessment, release and commercialization of GMOs, including liability for any damage caused by GMOs.
In terms of liability the Regulations have adopted a ‘strict liability’ approach, as follows:
6. All approvals for introduction of GMO or their products shall be subject to a condition that the applicant is strictly liable for any damage caused to any person or entity.
56.-(1) Any person or his agent who imports, transits, makes contained or confined use of, releases, carries out any activity in relation to GMOs or products thereof or places on the market a GMO shall be strictly liable for any harm, injury or loss caused directly or indirectly by such GMOs or their products or any activity in relation to GMOs.
(2) The harm, injury or loss includes personal injury, damage to property, financial loss and damage to the environment or to biological diversity as well as taking into account socio-economic, cultural and ethical concern.
(3) Liability shall be attached to the applicant, the person responsible for the activity which results in the damage, injury or loss, as well as to the provider, supplier or developer of the GMOs or their products .
(4) In case of harm to the environment or biological diversity compensation shall include the costs of reinstatement, rehabilitation or clean-up measures which actually are being incurred and, where applicable, the costs of preventive measures.
58. In the case of harm to the environment or to biological diversity, redress shall include the costs of reinstatement, rehabilitation or clean-up measures actually incurred or to be incurred and, where applicable, the costs of preventive measures and any loss or damage caused by the taking of the preventive measures; provided that the person responsible may be required to carry out the reinstatement or rehabilitation at its own cost and to the satisfaction of the National Biosafety Focal Point.
59. Liability shall also extend to harm or damage caused directly or indirectly by the GMOs or products thereof to the economy, social or cultural principles, livelihoods, indigenous knowledge systems, or indigenous technologies. Such harm includes the following: disruption or damage to production systems, agricultural systems, reduction in yields, and damage to the economy of an areas or community.
The Regulations also require GMO introducers to take out liability insurance in case of damage – at considerable cost, which the GMO lobby would likely prefer not to pay.
Liability (Strict Liability versus Fault Based Liability)
The Tanzanian Biosafety Regulations apply ‘strict liability’ meaning that whoever introduces the GMO shall be automatically liable for any damage caused. The pro GMO lobby want Tanzania to remove this liability and perhaps replace it with ‘fault based liability’ which would mean that anyone claiming compensation for damage would have to prove that whoever introduced the GMO was somehow at fault.
For example, under the existing strict liability rules, if a farmer’s crop was contaminated by GMO seeds then the farmer could expect to get compensation from whoever imported or introduced the GMO. Under the proposed ‘fault based liability’ the farmer would have to prove that the person introducing the GMO was somehow at fault, e.g. that they had failed to follow correct safety procedures.
Similarly the introducer of the GMO is currently strictly liable for any loss of biodiversity, damage to the economy, reduced yields etc.
The pro GMO lobby claim that their products / technologies are safe and beneficial yet they do not want to be liable for any damage caused. Is there something they are not telling us?
Why should Tanzania retain the Precautionary Principle?
Because it is the internationally accepted pillar of good practice in environmental legislation and policy, and because it makes obvious sense to be cautious about untested technologies. And frankly it is outrageous that GM biotechnology lobbyists are suggesting Tanzania should throw caution to the wind.
Why should Tanzania retain the strict liability approach?
Because Tanzania’s Parliament supported by the best national environmental and legal experts have adopted this approach recently (2009) following considerable thought and discussion of the pros and cons. Why should pressure from outside interests overturn their wise decision?
Tanzania is one of the 20 most biodiverse countries on Earth. In a world facing environmental meltdown Tanzania should be justly proud and fiercely protective of its rich environment.
Any person carrying out an activity that seeks profits should be prepared to pay for any damage that results. An innocent party that suffers damage should not have the onerous burden of proving liability and be uncompensated for others’ profit ventures.
Strict liability will deter reckless behaviour and claims in the development and marketing of GMOs. Strict liability may also be one way of operationalising the precautionary principle which governs the key elements of the Biosafety Protocol.
Tanzania has very limited capacity for policing / enforcing regulations relating to GMOs, because of it large area, porous borders, lack of GMO testing equipment, shortage of trained staff. Therefore the strict liability approach is more enforceable / feasible to implement.
Typically in many countries, strict liability is applied for those activities that are deemed to be hazardous and in respect of damage where the victim has not agreed to risk the injury by his own conduct. Hazardous activity also incorporates those situations where the probability of the incidence incurring may be low but the magnitude of the harm huge. Such as in the domains of marine transport of crude oil, transport and management of toxic chemicals and wastes, and nuclear activities. There is growing evidence that no matter how low the incidence of occurrence is claimed to be, the magnitude of the resultant harm from a GMO gone wrong could have catastrophic results – causing irreparable harm to agricultural ecosystems, crops, export earnings, indigenous knowledge systems and threatening food security. This qualifies any activity relating to GMOs as ‘hazardous.’ As such, strict liability would be an appropriate standard for liability for damage caused by GMOs.
Tanzania needs to wake up to the very real threat posed by the ‘race for what’s left’ of the planet’s natural resources, and balance the desire to attract inward investment against massive environmental risk, loss of biodiversity and food sovereignty, and further impoverishment of its many millions of small scale farmers.
[With grateful acknowledgement of Third World Network for a discussion of liability issues.]