LIABILITY and REDRESS under the CARTAGENA PROTOCOL
22 - 26 September 2003
The International Environmental Law Research Centre
(Kenya) in collaboration with the Biosafety
Interdisciplinary Network of the University of Geneva and with the
support of the Swiss Agency for Development and Cooperation (SDC)
hosted a Workshop on Liability and Redress under the Cartagena
Protocol in Mombasa from 22 to 26 September
The participants were drawn from academia, government, non-governmental
organisations and international organisations, and came from Kenya, Uganda
The objectives of the workshop were to
Situate biosafety in broader
Look at liability and redress legal regimes operative
in Kenya and Uganda
Identify gaps in those regimes
Learn from existing liability and redress regimes at
international law and from Switzerland
Suggest tenets of a biosafety
liability & redress system, and
Identify issues for further discussion & consensus
The workshop came in the backdrop of the coming into force
of the Cartagena Protocol on Biosafety
which calls for the adoption of Ďa 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 organismsí (Article 27).
A number of African countries have adopted or are in the
process of adopting legal and policy frameworks for biosafety.
This should in theory include provisions on liability and redress as part
of the regulatory regime. Kenya has, for instance, deferred to existing
liability and redress regimes in its draft Biosafety
Bill while Uganda recognizes the need for a liability and redress scheme.
However, more work needs to be done in this area.
The deliberations brought out the following issues:
- International rules on civil liability exist in some
areas and could be used as a model for the development of a liability
and redress regime in the field of biotechnology. Similarly, existing
regimes in other jurisdictions should be taken into account to the extent
that reliance on a model such as the new Swiss liability regime in biotechnology
should be tailored to the needs of Kenya and Uganda.
- Existing principles and norms of international environmental
law such as the precautionary principle, and the polluter pays principle
should also inform the development of liability and redress regimes.
- There are concerns about the potential impacts of biotechnology on
human health, plant and animal health and the environment and there
is therefore a need to develop regimes to deal with liability and redress
loss when it occurs.
- A liability and redress regime should address socio-economic, ethical
and cultural aspects.
- There exist liability and redress regimes in Kenya and Uganda which
can cover some but not all of the concerns related to biotechnology.
- Neither Kenya nor Uganda has developed a biotechnology specific liability
and redress regime.
- The complexities of liability and redress issues in biotechnology
necessitate the establishment of a specialised liability and redress
normative and procedural framework.
- An appropriate legal regime synergising the activities
of different relevant actors and institutions is required to deal with
procedure, proof, causation, time limitations and other issues pertinent
to liability and redress for biotechnology regimes.
- Insurance as a complement to a liability and redress
regime must be considered in general and in the context of state liability
- Discussions for the development of an international liability and
redress regime should start at the first meeting of the parties of the
Cartagena Protocol. Kenya, Uganda and other
African countries must prepare for the discussions and at the same time
develop their domestic liability and redress regimes in the field of
The workshop participants called for the mobilisation of resources to
develop capacity in Kenya, Uganda and other African countries to participate
in international discussions on liability and redress and to develop and
implement national liability and redress regimes.
Workshop participants and the International Environmental Law Research
Centre (Kenya) propose the following activities as a follow-up to the
- Participation in meetings of the parties to the Cartagena Protocol and other meetings devoted to the development
of international rules and procedures in the field of liability and
- Work towards the development of a common position on liability and
redress among East African countries.
- Capacity building for representatives from African
countries in international discussions on liability and redress for
- Training courses and workshops for law enforcement officers, and
judicial functionaries as well as regulators and scientists.
- Publication and dissemination of information pertinent to liability
and redress for biotechnology activities, in particular for the benefit
of farmers and consumers.
- Future workshop to examine how the standards have developed and examining
the contributions that the participants can make to national processes.
The participants of the workshop and IELRC gratefully
acknowledge the support of the Swiss Agency for Development and Cooperation
(SDC) in making this workshop possible and the collaboration
of the Biosafety Interdisciplinary Network,
Geneva (RIBios) in organising it.
Mombasa, 26 September