Kristin Dawkins, IATP

lthough the Cartagena Protocol on Biosafety is not yet in force, signatories may wish to take action now to prevent the import or demand compensation for costs they may incur as a result of having already imported a variety of genetically engineered corn from the United States that has not been approved for human consumption.

International Legal Issues.
According to customary international law, states do have a duty to ensure their actions do not cause harm in other states. This common law principle was extended to international environmental pollution in the 1941 "Trail Smelter" arbitration and is further elaborated in the 1972 Stockholm Declaration and the 1992 Rio Declaration, as well as several rulings of the International Court of Justice (ICJ). In 1996, the ICJ issued an advisory opinion regarding the legality of nuclear weapons noting that "the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or areas beyond national control is now a part of the corpus of international law relating to the environment." Subsequent ICJ rulings and environmental treaties reaffirm this principle.

This would seem to indicate that the US government is liable for what could be characterized as reckless and negligent failure to ensure the segregation of corn it has not approved for human consumption – because it could cause allergies – from corn that is destined for human use. The corn in question contains the Bacillus thuringiensis subspecies tolworthi Cry9C protein and the DNA necessary to produce this protein. There is evidence that Cry9C is heat stable and resistant to degradation in gastric juice, the two most important indicators of allergenicity. This corn is marketed with the trade name "StarLink," a product of the Aventis CropScience Company. But because the US commodities system is not prepared to keep bulk grains separated, StarLink corn has been distributed throughout the US domestic and export markets. Independent DNA testing has found the StarLink protein in a variety of consumer products in the US and in Japan, where recent legislation sets a zero tolerance for the import of unapproved agricultural products. In the absence of an effective segregation system, the US approval itself could be considered reckless and negligent.

Negligence is bad enough.
How about intentional harm? Once the contamination was discovered (not by government inspectors, but by non-governmental organizations opposed to genetically-engineered foods), the US Department of Agriculture moved to get rid of the unwanted product by officially approving StarLink for export – placing the burden on importing countries to object to StarLink imports and to test their current supplies. Also, the US Environmental Protection Agency (EPA), which regulates StarLink as a plant pesticide, has published notice domestically that Aventis is seeking an exemption for StarLink’s Cry9C DNA and the Cry9C protein, to allow its appearance in human foods as well as animal foods. This approval is subject to a public comment period and a final ruling by the EPA. The US may hope these actions will be construed by the courts as immunization from liability; could they not also be construed as willful and intentional disregard for public health and international law?

Compensation and Redress.
Access to compensation may become important in countries where efforts to identify and segregate StarLink corn from corn destined for human consumption will become extremely costly. Under customary international law, states have the right to seek compensation from another state responsible for the damages – whether to persons, property, the environment, or economic. While states have shown themselves, over time, to be reluctant to invoke international liability claims against other states, there have been cases in which compensation was negotiated "without reference to legal liability" – such as when the US paid Japan $2 million in 1944 as compensation for injuries caused by nuclear testing in the Marshall Islands. Countries also have the right to impose civil liability on private actors – such as Aventis – in their own courts or in the courts of the country where the act was done.

In the United States, efforts to segregate StarLink after co-mingling are expected to cost between $100 million and $1 billion. The United States Department of Agriculture is attempting to buy back crops from farmers who planted StarLink seed on some 315,000 acres this year, for re-sale to animal feedlots, dry-mill ethanol producers (as wet-milling generates a by-product that re-enters the human food system), or other industrial uses. Aventis has said it will reimburse the US government for the costs of this buy-back program. However, the buy-back from farmers represents only a small portion of the total costs to be incurred in post-harvest reclamation throughout the food system.

So far, three multi-million dollar recalls of taco shells found by anti-GMO activists to contain StarLink corn have been announced by the Kraft, Safeway and Western Family companies, while the US Food and Drug Administration has posted a recall on 297 brand-name corn products. StarLink is costing Archer Daniels Midland (ADM) at least $10,000 a day for extensive testing and monitoring of corn shipments at its processing plant in Decatur, Illinois. Elevators whose shipments test positive for StarLink are losing as much as $15,000 or more in extra freight costs as well as lower prices from the animal feed operations that eventually accept them. Corn futures prices have slipped on the Chicago Mercantile Exchange based on fears that the continuing StarLink corn controversy will hamper the potential to make good on ambitious targets for U.S. corn exports.

Who will pay for all of these economic disruptions?
Attorneys in the US are preparing for massive liability litigation, as affected parties all sue each other seeking recovery of their damages. Because StarLink’s registration with the EPA was limited to animal feed and industrial use, injured parties could seek to hold Aventis responsible for the failure to segregate. Many farmers claim that Aventis failed to advise them of the requirement to sell their StarLink crops only for animal feed and other uses than human consumption. Others claim the company failed to warn them of the need to plant 660-foot buffer zones of non-StarLink corn around their StarLink fields, to avoid genetic pollution. Cross-pollination between adjoining crops could constitute actionable trespass where StarLink’s DNA invades neighboring fields and deprives non-StarLink producers, especially those who are certified organic, access to markets. No doubt anticipating an onslaught of lawsuits, Aventis is attempting to get farmers to sign a notice, backdated to April 2000, indicating they were award of the segregation obligations; those who do not sign may not be eligible for the buy-back program underwritten by US taxpayers.

However, the situation also opens markets for non-StarLink producers, an opportunity that other agricultural countries are striving to fulfill. Japan, which usually buys about 30 percent of US corn exports worth some $1.5 billion, has asked the US to ensure that shipments do not include StarLink. Some Japanese companies, however, are looking elsewhere – to China, South Africa and Argentina – for supplies, even if it has to pay a premium price. The European Union, too, is questioning whether the US can distinguish between approved and non-approved products. The US has sent delegations to both Japan and Europe to try to calm importers’ concerns about StarLink contamination.

Meanwhile, individual countries may wish to take steps now to protect themselves from potential liability due to StarLink imports under existing international law. The parties to the convention biodiversity (CBD) may also wish to request the ICJ for an advisory opinion concerning the legality of the US’ StarLink exports. And if a dispute should arise under the CBD, the ICJ may be asked to help find a settlement.

Need for a Biosafety Liability Regime.
The Cartagena Protocol on Biosafety postpones the start liability negotiations until two years after entry into force, and even then it could take years to reach an agreed regime. But ironically, it may be the private sector that cannot wait…

Numerous international agreements have been negotiated to deal with liability and compensation that may be caused by other risky business >Read page 28. Where fault cannot be proven, strict liability is placed on the exporter for transportation incidents or on the disposer should damages occur after receipt. All potentially liable parties are required to carry insurance, bonds, or other financial guarantees covering liability in advance.

Do any of these models properly allocate the liability for environmental, human health or socio-economic damage that may be caused by GMOs? In cases in which signatories properly implemented the Biosafety Protocol and damage resulted nonetheless, there may be one answer. What about cases in which signatories may not properly follow the global biosafety rules? And what about cases involving non-parties?

It will be years before the parties to the Cartagena Protocol on Biosafety negotiate a liability regime. The experience with StarLink suggests it would be prudent to begin the effort immediately. Meanwhile, existing international law provides ample scope for states to seek compensation and otherwise defend themselves from StarLink contamination and resulting economic dislocation.