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R 100005Z FEB 09
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TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
RUEHTRO/AMEMBASSY TRIPOLI 5533

UNCLAS SECTION 01 OF 02 STATE 011910 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: EAGR ECON ETRD TBIO KPAO
SUBJECT: DEMARCHE ON LIABILITY AND REDRESS UNDER THE 
CARTAGENA PROTOCOL ON BIOSAFETY 
 
This is an action request. See para 8. 
 
 
¶1.      SUMMARY.  On February 23-27 in Mexico City the 
Group of the Friends of the Co-Chairs Concerning 
Liability and Redress in the Context of the Cartagena 
Protocol on Biosafety (the "Group") will meet to 
continue negotiations on the text of proposed rules on 
liability and redress for damage resulting from the 
cross-border movement of living modified organisms 
(LMOs) as called for by Article 27 of the Protocol. 
Depending on the final text, these rules could severly 
impact world trade in biotech-based commodities if 
options imposing risk and uncertainty on exporters are 
adopted.  As a non-party, the United States may only 
participate in the meeting as an observer, but will 
seek to influence the outcome of these negotiations 
through discussions with member delegations.  In 
preparation for this meeting, posts are requested to 
report on host government positions' on key elements of 
the proposed agreement by February 13 and to solicit 
support for a more balanced proposal.  Please see full 
action request in paragraph 8.  END SUMMARY. 
 
¶2.      The February meeting may finalize the text on 
liability and redress set for adoption at the fifth 
Meeting of the Parties to the Cartagena Protocol on 
Biosafety (COP-MOP 5) to be held in Nagoya, Japan, on 
October 11-15, 2010.  A supplementary agreement to the 
Convention on Biological Diversity, the Cartagena 
Protocol on Biosafety (CPB) is a multilateral 
environmental agreement that regulates the 
transboundary movement of LMOs (organisms, including 
crops that have been genetically engineered and can 
replicate in the environment). 
 
¶3.      Experience to date with the transboundary movement 
of LMOs shows no damage to biodiversity has been 
observed after more than a decade of commercialization 
of the technology. The U.S. maintains that no new rules 
are needed to specifically cover this area.  However, 
the Parties to the CPB remain intent on developing some 
type of instrument or instruments.  Of particular 
concern are draft provisions that would treat trade of 
LMOs as an inherently ultra-hazardous activity 
requiring an operator to be held strictly liable if 
damage, broadly defined, results from this activity. 
 
¶4.      The current text does not limit itself to 
biodiversity damage, but includes coverage of pure 
economic harm, socio-economic harm and harm to human 
health.  If adopted and enforced in national 
legislation, a system of redress for such a broad range 
of damage could have a severe impact on trade in LMOs. 
In addition, draft provisions mandating the use of 
financial securities (e.g. insurance) to backstop 
specifically for "damage" as defined by the instrument 
is of concern. 
 
¶5.      While the United States is not a Party to the CPB 
we are the largest exporter of LMOs in the world. 
Decisions taken at the meeting could have a direct 
impact on our multi-billion dollar grain and seed 
trade, particularly in corn, soybeans and cotton. At 
risk is the financial security and global market access 
of U.S. technology providers, producers, exporters and 
shippers of bulk commodities and seeds -- trade which 
totaled almost $25 billion in exports in 2007. 
 
 
¶6.      Key Issues 
 
Among the key issues on which agreement has yet to be 
reached are: 
 
-- Definition of Damage.  The USG supports a narrow 
definition limited to damage to biodiversity.  The USG 
does not/not support extending the definition of damage 
to areas beyond the scope of the CPB or its parent 
Convention (the CBD).  These areas include harm to 
human health, pure economic harm, socioeconomic or 
cultural harm. 
 
-- Definition of Operator.  The U.S. supports a 
definition of operator that is limited to the entity in 
control of the LMO at the time the activity causing the 
damage occurs. 
 
STATE 00011910  002 OF 002 
 
 
-- Standard of Liability (Strict versus Fault-Based). 
The USG prefers fault-based liability for the movement 
of LMOs.  The transboundary movement of LMOs is not an 
inherently "ultra-hazardous" (a term reserved for 
materials so hazardous that damage will result from 
exposure; i.e. radioactive waste) activity.  A fault- 
based standard will ensure that the entity (shipper, 
exporter, or importer) with control of the LMO has the 
proper incentive to protect against inadvertent release 
of the LMO into the environment. 
 
-- Financial security.  The USG does not/not support 
the mandatory use of insurance or other financial 
instruments for shipments of LMOs the added costs of 
providing such guarantees are not merited given the low 
level of risk posed by LMOs. 
 
-- Binding vs. non-binding.  The USG supports outcomes 
that are flexible enough so that governments may 
implement them within existing legal systems.  The 
rules should specifically not reinvent standard 
domestic legal practice with respect to recognition of 
foreign judgments, standing to bring a case, and 
jurisdiction.  The Parties have apparently settled on 
pursuing development of a binding "administrative 
approach" system and a non-binding civil liability 
system.  While the USG has little ability to influence 
this decision, we do wonder if development of a binding 
instrument on the administrative approach, which would 
place significant administrative burdens on parties, is 
useful given the existing state of implementation of 
the Protocol itself among Parties.  We are also 
concerned that the "non-binding" aspect will become a 
de facto binding initiative, which has the potential to 
be overly burdensome to all parties involved. 
 
¶7.      It is not apparent that representatives to Group 
meetings have shared information with relevant 
ministries within their host governments.  At past 
meetings, interventions by delegates have not always 
reflected their governments' views.  We would encourage 
governments to provide guidance to their delegations 
that reflects the consensus view of all interested 
ministries. 
 
¶8.      Action Request:  The USG would like to request FAS 
and ECON officers to reach out to Ministries of 
Agriculture, Trade and Environment to understand how 
each country will be represented in Mexico City, and to 
determine their country's positions on the issues.  The 
draft proposal up for consideration by Parties could 
severely impact the global trade of biotech derived 
commodities due to the risk and uncertainty that could 
be imposed on exporters.  We request immediate 
engagement with all relevant host Government ministries 
to express our concerns over this potentially grave 
situation and to elicit support for a more balanced 
proposal. 
 
¶9.   Please report on results of the demarche via cable 
by February 13 and slug response to USDA/FAS -Steve 
Froggett (steve.froggett@fas.usda.gov); OES - Danielle 
Wood (WoodDK@state.gov; and EEB/TPP/MTAA/ABT - Marcella 
Szymanski (Szymanskimb@state.gov). 
¶10.   Minimize considered. 
CLINTON