Administrative approach to liability

The European Union (EU) introduced the administrative approach with regard to liability and redress in the context of the Cartagena Protocol on Biosafety (Cartagena Protocol). This is based on the system that the EU adopted internally through Directive 2004/35 on environmental liability with regard to the prevention and remedying of environmental damage. ¹ The adoption of the Directive coincided with the commencement of the negotiating process under Article 27 of the Cartagena Protocol. Its negotiating positions were heavily conditioned by this internal EU legislation and the outcome of the negotiation was influenced by that legislation as well, culminating in the adoption of the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol (Supplementary Protocol); the influence on its administrative approach to liability was especially felt in the core of this legally binding instrument. At first sight, one could interpret this outcome as the direct effect of transposing to the Supplementary Protocol internal legislation of the EU and its 27 Member States, undoubtedly a large block of countries involved in the negotiation. However, a deeper analysis will demonstrate that it was the result of a limited transposition of the EU legislation to the international sphere and was actually the side effect of some decisions taken by other regional groups during the negotiation. This chapter will introduce the core elements of the administrative approach to environmental liability under EU legislation and track the circumstances in which this approach was converted into the main element of the liability regime for living modified organisms (LMOs) in the negotiations under Article 27 of the Cartagena Protocol. In this context, it is important to note that this is one of the main circumstances directly linked to the negotiation of the Cartagena Protocol itself, particularly for the EU. Thus, it is necessary to first describe correctly the framework of the negotiation process under Article 27 of the Cartagena Protocol in order to elaborate on international rules and procedures in the field of liability and redress for damage resulting from LMOs.