During the period between 1996 and 2000, the global area of transgenic or genetically modified crops increased more than twenty-five-fold and the number of countries growing transgenic crops more than doubled, increasing from six in 1996 to thirteen in 2000.1 More than a decade after the first genetically modified organisms (GMOs) were commercialized and released into the environment, researchers and scientists still disagree about the potential effects, positive and negative, on the environment.2
For example, after a year and a half of research by more than twenty researchers from universities and industries on the potential threat of genetically modified corn to monarch butterflies, scientists were unable to determine the magnitude of the risk to the monarch butterfly population.3 Scientists have identified, however, a number of ways in which GMOs could adversely impact both human health and the environment, including the introduction of new allergens into the food supply and an increase in resistance to herbicides in weeds and insecticides in insects.
With the growing international trade in GMOs, who will be legally responsible if these potential human and environmental risks are realized? The Cartagena Protocol on Biosafety4 (Cartagena Protocol), created under the Convention on Biological Diversity,5 addresses the issues of liability and redress for damage resulting from GMOs. The enabling clause, Article 27, calls for the parties to "adopt a 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 organisms"6 and the clause sets a four-year goal for the completion of this endeavor.7
This Note will address the challenges facing the creation of a potential liability and redress scheme under the Cartagena Protocol. First, it will offer an introduction to the field of GMOs. Second, it will present a brief history of the Cartagena Protocol, including its origins in the Convention on Biological Diversity. Finally, this Note will outline some of the unique difficulties regarding a scheme for liability and redress presented by GMOs and the major issues that must be addressed for a successful liability regime under the Cartagena Protocol.
A. Genetically Modified Organisms
Simply put, the genetic engineering of plants involves taking genes holding a desired trait or characteristic from one species and inserting them into another.8 The donor gene can be taken from the same species of plant or "from bacteria, viruses, insects, animals or even humans."9 Alternatively, traditional selective breeding limits the selection of genetic traits to those that already exist within a species' gene pool.10
Genetic engineers use a biochemical process to cut strings of DNA and select the required genes, which are then inserted into the DNA of a plant that is to be engineered. This genetic transfer can be accomplished in two ways.11 One method uses a piece of genetic material taken from a virus or bacterium that acts as a "ferry," transporting the gene into the plant's own DNA.12 The other method involves coating a large number of tiny pellets of gold or tungsten with the gene.13 These pellets are fired into a layer of cells taken from the recipient plant thereby depositing the package of genes into the nucleus of a cell which, in certain cases, will then be integrated into the cell's own DNA.14
Before the gene transfer, scientists attach a "marker gene," which codes for resistance to an antibiotic.15 By growing the engineered plant cells in an environment containing the antibiotic, only the plants with the antibiotic-resistant "marker" will survive to be cultivated into mature plants.16 This allows genetic engineers to establish which cells have taken up the new DNA.
Generally, GMOs may be bred for a variety of goals, including resistance to pests and diseases and the achievement of better growth in adverse conditions, such as drought or cold temperatures. …