on liability and redress as a high priority for the Protocol’ (WWF, 2001: 4). In particular, WWF called for the provisions on liability and redress to apply the principle of strict liability, to be based on civil liability, and to channel liability to private actors: ‘There is no justification for leaving states to assume liability concerning the activities of private parties’ (ibid.). The Global Industry Coalition, a lobby group repres- enting biotech and seed firms, intervened during one of the sessions on liability to argue that, since the CBD and the CPB agreements are between states, the responsibility for liability and redress ought to rest with states. In the event, the parties were unable to agree on the sub- stantive issues during ICCP-2, and instead worked to develop a process for elaborating a liability regime (CBD Secretariat, 2001: 10–12, 27–9). The debate on the possible contents of a transnational liability regime, therefore, continues to unfold. Liability as a tool of resistance: litigation in North America In the absence of a statutory liability regime that addresses public concerns, private actors are resorting to existing regimes of civil liability law and public law as alternative methods for raising their objections to GM crops and defending their interests. These private actors in- clude those campaigning against GM technology on principle, as well as interested parties such as organic or conventional farmers who claim their rights or interests have been damaged by GM crops. For example, at the time of writing, several private liability (tort) cases have been brought or are being considered in the US and Canadian courts, by producers of organic or ‘conventional’ crops who have been affected by ‘genetic drift’. 13 Tort is a branch of law that provides redress for wrongs or injuries caused by a breach of legal duty to do or refrain from doing something. It derives from the English common law, a body of traditional law developed by the courts consisting of principles which are embodied in precedents set by previously decided cases. Duties and liabilities under tort law therefore exist independently of statutory provisions that provide for civil liability.
business and biotechnology | 216 The North American tort cases include class action 14 cases against Monsanto and others in North Dakota, Minnesota, Iowa and Illinois in the USA and Saskatchewan in Canada (Agence France Presse, 2002; Cropchoice.com, 2001a, 2001b; Knight, 2000; Kossick, 2002; Shadid, 2001), as well as a counter-suit filed by the Canadian farmer Percy Schmeiser in his defence in a patent-infringement case brought against him by Monsanto (Mandler and Eads, 2000). These cases are worth examining for a number of reasons. First, although the specific provisions of civil liability law differ from one jurisdiction to another, these North American cases serve to illustrate the types of conﬂict that can occur between interest groups over the introduction of biotech crops. Second, they demonstrate how recourse to law is sometimes used as a form of strategic political intervention by civil society groups. Third, they serve as an example that enables us to
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