CIVIL LIABILITY FOR DAMAGE CAUSED TO BIOLOGICAL DIVERSITY

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CIVIL LIABILITY FOR DAMAGE CAUSED TO BIOLOGICAL DIVERSITY

Journal Title: Вісник Одеського національного університету. Правознавство - Year 2015, Vol 20, Issue 2

Abstract

For the passed half a century active development of biotechnologies changed the relation of the person to natural resources, in particular to flora and fauna. The modern methods of molecular biology made ‘simulated evolutionary jump’, having pushed aside traditional methods of selection and natural selection on a background. Nevertheless, so precipitant distribution of the alive changed organisms (ACO) within the planet as uniform ecosystem, forced the international community to develop the uniform mechanism of legal regulation in the new sphere of economic activity. Difficult legal and biological nature of genetically modified organism have been served as a ground for their regulation as an object not alone international public law, but civil law of Ukraine. Definition and status of genetically modified organisms were defined in a number of the international protocols. Ratification by Ukraine the Cartagena Protocol on Biosafety will entitle the implementation of the civil liability for damage caused to biological diversity in the civil law. Analyzing realization of international protocols in a domestic law of the Ukraine, tacking in account existential risks, researches in area of genetically modified organisms, let in risks for human health, it is noted that that activity in a production, processing, treatment, transfer, use, storage, transboundary transfer of genetically modified organisms and their parts belong to the ultra-hazardous source. In the article are noticed the measures of reacting and civil liability of persons, who operate with them. As the Cartagena Protocol is applied to transboundary transfer, transit, processing and use of all ACO/GMO, capable to make an adverse effect on preservation and steady use of biological diversity, also taking into account the risk for health of the person (Art. 4), a subject of liability by the rules of Art. 1187 of Civil Code of Ukraine is the owner of object with which activity creates the ultra-hazardous. This statement concerns also the subjects utilizing GMO in Ukraine. For the solution of a question of involvement of this or that person to liability on the Art. 1187 of Civil Code of Ukraine it is necessary to define two main signs: legal and material (actual). The legal sign means that the owner only that person who owns object with which activity creates the ultra-hazardous, on the corresponding legal ground: an ownership right, other proprietary interest, the lease contract (including – a longtime consession of land), contract of agency, contract of work and labour, etc. The material sign of the owner of the ultra-hazardous source means that the person has to carry out actual possession (operation, use, storage, maintenance) of the dangerous objects. It is remarkable that activity with ACO/GMO is not especially a prerogative of the state, the natural or legal entity which is carrying out such activity is under its jurisdiction (the Art. 3.d. of the Cartagena Protocol). There is open a question in the Ukrainian legislation on insurance of civil liability of these persons. This mechanism of compensation is worked already out by the largest corporations which are carrying out activity in this sphere. However, in case of insufficiency of insurance payment (insurance compensation) for a full recovery of the harm done to them, the legal or natural person is obliged to pay to party injured a difference between the actual extent of harm and insurance payment (insurance compensation) (Art. 1194 of Civil Code of Ukraine), however, if do not prove that harm was done owing to force majeure (item 5 of Art. 1187 of Civil Code of Ukraine). In view of the Universal Declaration on Human Rights, the Vienna Convention on the Right of International Treaties, the Convention on Biological Diversity, the Cartagena Protocol on Biosafety, Nagoya-Kyala- Lumpur Supplementary protocol on liability and redress to Cartagena Protocol on Biosafety, the Constitution of Ukraine, the Law of Ukraine ‘About Сonsumer Protection’, and also scientific information on existential risks and researches in the field of ACO/GMO and the fact that activities for production, processing, processing, transfer, use, storage, transboundary transfer of ACO/GMO and their parts / components belonging to activity, connected with the objects of the ultra-hazardous the author considers that this activity demands the special status and has to be regulated, including also the Law of Ukraine ‘About the Ultra-hazardous Objects’.

Authors and Affiliations

C. M. Lewandowski

Keywords

civil liability protection of consumer rights genetically modified organism ultra-hazardous source Cartagena Protocol on Biosafety Nagoya-Kyala-Lumpur Supplementary protocol on liability and redress to Cartagena Protocol on Biosafety

EP ID EP404834
DOI -
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