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No 10 claims
Biosafety Protocol Process on Liability and Redress:
Food for Thought on Key Issues
Paper No. 10
ONLY PERSONS OR ENTITIES DIRECTLY IMPACTED CAN BRING A CLAIM *
Court proceedings on liability are not designed for voicing concerns or debating policy issues.
Therefore, only a person or entity with a concrete interest may bring a liability claim.
Applicable legal instruments differ in how they define this interest, but there is general y a
requirement for a claimant to be directly and material y impacted by the al eged damage in
order to have standing to file a claim. Without this requirement, courts would be flooded with
claims from people who have a general concern but are not directly affected. Persons or other entities wishing to bring a claim must demonstrate that they have an interest
as recognized by the applicable law. Most legal systems recognize an interest if the person or
entity has been directly and material y impacted by the al eged damage. Under state liability,
only states can bring a case before the International Court of Justice or an international
arbitration institution, provided they can demonstrate an interest. Under civil liability, a private
actor (for example, a person or company) who can demonstrate an interest may bring a case
before a national court (see Paper No. 3). A government authority or institution can also bring
a claim if it is in the same factual position as a private actor (for example, if it is the owner of a
property that was damaged). The right to bring a claim is not usual y one of the issues
addressed by international civil liability treaties. It is therefore subject to the national
legislation of the court where the claim is to be brought (see Paper No. 2).
Public interest groups do not normal y have standing to bring a liability case. Under state
liability, this is because they are not states. Under civil liability, they are not considered to
have a concrete interest unless the damage affects them in a material way. This would be the
case, for example, if the claim concerns damage to land owned and managed as a protected
area by a non-governmental organization.
This does not mean, however, that non-governmental organizations have no means to be
heard. In many countries, there are specific avenues for public interest groups and others to
voice their concerns on issues related to LMOs, often at the level of political debate. Some
countries also give civil society organizations the possibility of formal input into the legislative
process at one or more level of government, and some countries give standing to such
groups in public law or administrative law procedures, in areas of their specific expertise, to
chal enge a measure adopted by the government.
* This is one of a series of short papers aiming to contribute to the discussion on liability and redress in the context of
the Cartagena Protocol on Biosafety by setting out key concepts in a succinct, clear and easily understandable way.
The author is Director of Kummer EcoConsult and lecturer at the Department of Economic Law, University of Berne
(Switzerland), and has worked extensively on issues pertaining to international regulation of liability and
compensation. The series is intended as a fol ow-up service to the provision of expert advice by the author during
COP-MOP-1, where she was made available as an independent resource to delegates by CropLife International. The
content of the series is whol y the opinion and responsibility of the author.
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