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For almost a decade, the development and
commercialization of genetically engineered plant varieties such as Bt cotton
have drawn a lot of attention. While most of the attention has concentrated on
the pros and cons of introducing genetically engineered organisms (GEOs) into
the environment, little consideration has been given to the potential negative
consequences of the introduction of GEOs into the environment. It is
increasingly clear that GEOs will be introduced into the environment, with and
without the sanction of the Genetic Engineering Approval Committee (GEAC), as in
the case of the Bt cotton illegally planted in Gujarat. It is therefore
imperative to address not only the conditions under which GEOs should be
commercialized - an issue which is still under debate – but also to devise
specific provisions concerning liability for damage that may occur as a result
of their introduction into the environment.
The basic legal framework governing GEOs
(both GE crops and GE food products) in India is the Environment (Protection)
Act, 1986. The Central Government has formulated the rules for the
Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms,
Genetically Engineered Organisms or Cells in 1989, that have been
effective since 13/9/1993 (the ‘Rules’). These rules have clubbed the meaning
of GEOs with hazardous substances. So rather than being specifically treated,
GEOs are clubbed together with hazardous substances regardless of the
specificities associated with GEOs.
These rules do not address the issue of
liability which will have to be governed by the general rules on liability. The
general rules are, however, insufficient to deal with certain kinds of specific
environmental damage. The Bhopal Gas Tragedy is a case in point where existing
tort laws proved to be insufficient to deal with the case and led to the
development of statutory instruments such as the Public Liability Insurance
Act 1991.
Currently, we have general liability
rules both at the national and international level except a few specific
liability regimes that have been adopted to supplement general rules for
hazardous activities such as nuclear energy, the transboundary movement of
hazardous wastes or the carriage of oil. It is necessary to develop separate
liability rules for biotechnology because of the specific and novel challenges
linked to the introduction of GEOs into the environment.
The introduction of GEOs into the
environment can have negative environmental impacts like the dangers linked to
the instability of the genetic material and the possibility of further changes
in the genetically engineered organisms, the transfer of genes to other
organisms and the potential for transgenic varieties to create new weeds leading
to the displacement or disappearance of wild species. A recent study in the UK
showed that wildlife suffered damage during field trials of GE sugar beet and
spring rape. The study indicated that the occurrence of fewer weeds may
substantially reduce the availability of seeds important in the diets of some
birds. Further, it indicated that these crops may exacerbate long-term decline
of flowering weeds, including those that are important as food resources for
seed-eating birds.
Other areas where liability issues will
arise, is the contamination of organic crops by transgenic seeds. In such
cases, farmers have provided contractual warranties regarding the organic status
of their crops. Due to established standards for organic crops and contractual
obligations, the unintended presence of GEOs in organic and GE–free crops may
result in lost market opportunities or prevent possible premium rates from being
obtained. Socio-economic concerns also arise where GEOs contribute to
displacing existing plants. Where displaced plants are basic food crops, their
disappearance may have negative consequences for the fulfilment of basic food
needs.
Property rights like intellectual
property rights associated with GEOs, may affect the farmer growing
non-transgenic crops on account of patent violation because in practice, GEOs
introduced into the environment can find their way beyond field borders into
which they have been introduced and their seed may find their way to the lands
of farmers who do not grow transgenic crops and therefore do not pay royalties
to the company holding the patent. The patent holder may thus claim for
infringement of the patent. This has already happened in Canada where Monsanto
sued a farmer, Percy Schmeiser, for infringement of a patent. The judgment made
it clear that Schmeiser was liable to pay Monsanto whether he was aware of the
presence of the protected seeds or not.
Currently, Austria and Germany appear to
be the only major countries to have addressed liability issues relating to GEOs
through specific legislation. Both these countries impose strict liability for
particular types of loss caused by GEOs. Under Austrian law, in the event of an
accident involving GEOs, the releasing company will be liable for any harm to
health, property, or the environment, and must return the property to its
“original” state. German law imposes liability for injury to property or human
health “caused by characteristics of an organism created in a biotechnological
process”. German regulations place liability at the “manager” level of the
installation, which is likely to expose GE farmers (as installation managers) to
liability exposure. German law also makes liability insurance mandatory for GE
operators.
In India too, it would be necessary to
develop separate liability rules for GEOs bearing in mind the specific and novel
challenges linked to the introduction of GEOs into the environment, escape of GE
seeds and ‘contamination’ of non-GE seeds, or failure of containment measures
with regard to GEOs. The right to be “GE-free” is a ‘fundamental right’ that
must be preserved as it goes to the heart of the responsibility that farmers
have to ensure that their actions do not impact on others. Strict liability
should be imposed on operators for the damage caused by the GEOs. A
compensation fund should be established, paid by levies on the biotechnology
industry to provide relief for victims of genetic contamination. Insurance or
assurance bonds should be made compulsory. The liability regime would need to
constantly evolve because of the uncertainties involved in the use of GEOs and
be amended to address future scenarios of risk and liability.
×Genenews
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