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Self-Spreading Biotechnology and International Law

“…108 102 Cf. Joachim Wolf, Gibt es im Völkerrecht einen einheitlichen Schadensbegriff?, 49 (1989) ZaöRV 403,[429][430][431][432]Lefeber (n. 27),[136][137][138]Bergkamp (n. 51), 332-338; see chapter 11, section B.II. 103 See, e.g., 1992 Oil Pollution Convention (n. 28) 112 In the context of the present study, the Nagoya -Kuala Lumpur Supplementary Protocol on Liability and Redress primarily provides for administrative liability.…”

“…At first sight, this may seem like a mere formality, as the CBD COP also serves as the meeting of parties to the Cartagena Protocol (COP-MOP). 429 However, since fewer states have ratified the Cartagena Protocol than the CBD, any decisions adopted under the CBD have a significantly larger international reach than those adopted under the Cartagena Protocol. 430 Provision of Information to Parties Receiving LMOs (Article 19(4))…”

“…Article 19(4) is the only provision of the CBD that directly addresses the transboundary movement of LMOs. 431 It provides that when LMOs are to be introduced from one party into another party, the party of origin shall share two types of information with the receiving party. First ly, it shall provide 'any available information about the use and safety regulation it requires in handling such organisms' 432 This overlaps with Article 20(3)(a) CP, which requires parties to the Cartagena Protocol to provide information about their national biosafety regimes to the Biosafety Clearing-House.…”

“…428 It appears more convincing to view the procedural duties not (only) as independent customary obligations, but (also) as expressions of the sub stantive obligation to prevent harm. 429 This would recognize that the sub stantive content of the due diligence obligations can be informed through the application of the procedural elements of due diligence, such as the obligation to conduct an EIA, and to notify and consult with affected states. 430 At the same time, states may use their compliance with procedu ral rules -including from soft law instruments -as evidence that they have acted with due diligence when responding to potential claims that they have breached their preventive obligations.…”

“…430 At the same time, states may use their compliance with procedu ral rules -including from soft law instruments -as evidence that they have acted with due diligence when responding to potential claims that they have breached their preventive obligations. 431 More fundamentally, international jurisprudence should also take ac count of the evidentiary challenges an injured state may face in proving a breach of due diligence. In disputes concerning alleged transboundary harm caused by LMOs, the defendant state should be required to provide all relevant information about the LMO it obtained in the course of regu latory procedures.…”