Information

Establishment of an Open-Ended Ad Hoc Working Group of legal and technical experts on liability and redress in the context of the Protocol

The Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety,

Recalling Article 27 of the Protocol, which requires the Conference of the Parties serving as the meeting of Parties to adopt, at its first meeting, a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms, analysing and taking due account of the on-going processes in international law on these matters, and to endeavour to complete this process within four years,

Recognizing that the appropriate elaboration of international rules and procedures regarding liability and redress pursuant to Article 27 of the Protocol is crucial for the effective implementation of the Protocol,

Emphasizing that the process with respect to liability and redress under the Protocol is distinct from the process with respect to liability and redress under Article 14, paragraph 2, of the Convention, while acknowledging the need to identify and promote synergies and cross-fertilization between the two processes,

Recognizing that the process with respect to liability and redress under Article 27 of the Protocol is also distinct and different from the compliance procedures and mechanisms under Article 34 of the Protocol,

1. Decides to establish an Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress to carry out the process pursuant to Article 27 of the Protocol;

2. Decides that the terms of reference for the Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress established by paragraph 1 above shall be those contained in the annex to this decision;

3. Requests the Executive Secretary to convene the Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress established by paragraph 1 above as soon as possible, at least once before the second meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol.

4. Requests the Executive Secretary in consultation with the Bureau, to convene a Technical Group of Experts on Liability and Redress composed of experts nominated by Parties to the Protocol and based on a fair and equitable geographical representation to undertake preparatory work for the first meeting of the Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress.

5. Invites Parties, Governments and international organizations and relevant stakeholders that have not done so to submit their views to the Executive Secretary on the questionnaire contained in the annex to recommendation 3/1 of the Intergovernmental Committee on the Cartagena Protocol on Biosafety (UNEP/CBD/ICCP3/10) no later than three months prior to the meeting of the Technical Group of Experts referred to in paragraph 4 above, and requests the Secretariat to compile the views submitted including those submitted for the purpose of the first meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol contained in document UNEP/CBD/BS/COP-MOP/1/INF/6, and prepare a synthesis report of the submissions for consideration at that meeting.

Annex

TERMS OF REFERENCE FOR THE OPEN-ENDED AD HOC WORKING GROUP OF LEGAL AND TECHNICAL EXPERTS ON LIABILITY AND REDRESS IN THE CONTEXT OF THE CARTAGENA PROTOCOL ON BIOSAFETY

1. The Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress (hereinafter referred to as Ad Hoc Group on Liability and Redress) established pursuant to Article 27 of the Protocol shall be composed of representatives, including legal, technical and scientific experts, nominated by Parties to the Protocol. The Ad Hoc Group on Liability and Redress shall be open to the participation as observers of any State not a Party to the Protocol, international organizations, non-governmental organizations and industry.

2. The Ad Hoc Group on Liability and Redress shall elect its chairperson and other officers.

3. The Ad Hoc Group on Liability and Redress shall review the information relating to liability and redress for damage resulting from transboundary movements of living modified organisms, and shall:

(a) Examine the information provided by Parties, Governments, relevant international organizations and stakeholders pursuant to recommendations 2/1, paragraph 2, and 3/1, paragraph 1, of the Intergovernmental Committee for the Cartagena Protocol on Biosafety, the synthesis of that information by the Secretariat, as well as information provided to date by the Secretariat in the context of liability and redress under Article 14, paragraph 2, of the Convention on Biological Diversity;

(b) Examine the information and initial understandings submitted by Parties, Governments, relevant international organizations and stakeholders on the basis of the questionnaire on liability and redress for damage resulting from transboundary movements of living modified organisms annexed to recommendation 3/1 of the Intergovernmental Committee for the Cartagena Protocol on Biosafety, as well as further views submitted by them on the matter covered under Article 27 of the Protocol;

(c) Take into account the report of the Workshop on Liability and Redress in the Context of the Cartagena Protocol on Biosafety (UNEP/CBD/BS/COP-MOP/1/INF/8) that was held in Rome from 2 to 4 December 2002 and was a forum for discussion;

(d) Request any information that may be required to assist the work on Article 27 of the Protocol; and

(e) Take due account of the ongoing processes in international law on the matters covered under Article 27 of the Protocol.

4. The Ad Hoc Group on Liability and Redress shall, on the basis of foregoing information, analyse the issues relevant to liability and redress with a view to building understanding and consensus on the nature and contents of international rules and procedures referred to in Article 27 of the Protocol. In doing so, it shall:

(a) Analyse general issues relating to:

(i) The potential and/or actual damage scenarios of concern that may be covered under the Protocol in order to identify the situations for which international rules and procedures referred to in Article 27 of the Protocol may be needed;

(ii) The application of international rules and procedures on liability and redress to the damage scenarios of concern that may be covered under Article 27 of the Protocol;

(b) Elaborate options for elements of rules and procedures referred to in Article 27 of the Protocol, which may include, inter alia:

(ii) Definition and nature of damage, including scope of damage resulting from transboundary movement of living modified organisms;

(iii) Valuation of damage to biodiversity and to human health;

(iv) Threshold of damage;

(v) Causation;

(vi) Channelling of liability;

(vii) Roles of Parties of import and export;

(viii) Standard of liability;

(ix) Mechanisms of financial security;

(x) Standing/right to bring claims.

5. The Ad Hoc Group on Liability and Redress shall report on its activities and progress to each subsequent meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol. At the first meeting of the Conference of the Parties serving as the Parties to the Cartagena Protocol on Biosafety after the Group has been established for two years, the Conference of the Parties serving as the meeting of the Parties to the Protocol shall review the progress and if necessary provide guidance to the group. The Ad Hoc Group on Liability and Redress shall present its final report, together with the proposed international rules and procedures in the field of liability and redress pursuant to Article 27 of the Protocol, to the Conference of the Parties serving as the meeting of the Parties to the Protocol.

6. The Ad Hoc Group on Liability and Redress shall complete its work in 2007 in order to enable the Conference of the Parties serving as the meeting of the Parties to the Protocol to fulfil the requirements under Article 27 of the Protocol. The Executive Secretary will convene a Technical Group of Experts on Liability and Redress composed of experts nominated by Parties to the Protocol and based on a fair and equitable geographical representation to undertake preparatory work for the first meeting of the Ad Hoc Group on Liability and Redress. Subject to review at each meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol, the following arrangements may be used as an indicative work plan for the Ad Hoc Group on Liability and Redress:

Indicative work plan of the Technical Group of Experts and the Ad Hoc Group on Liability and Redress 2/

Notes:

2 / Subject to budget considerations.