The Compact’s Guiding Principles

The Compact fully recognizes and respects that States can choose to receive a response for damage to biological diversity under the Compact or pursue a remedy under otherwise applicable law. The Compact properly reflects that States cannot do both. If a response is provided under the Compact, it would be unfair for there to be double or multiple recoveries for the same damage. Members believe States will find the Compact to be a preferable alternative because it provides the certainty of a fair, clear and definite process and of the financial ability of Members to respond. The Compact also offers an opportunity for the timely resolution of a claim by qualified neutrals to efficiently and effectively handle claims for damage to biological diversity which are likely to be very complex.

The Compact reflects principles set forth in the Rio Declaration on Environment and Development that a responsible party should remedy damage to biological diversity caused by that party. If the release of an LMO by a Member caused damage to biological diversity, that Member will remediate the damage to the extent that is it causally responsible. For this Compact only, Members have agreed that they will not be able to assert certain traditional defenses, such as a “state of the art” defense, and that they may be responsible for responding even when they took reasonable care to prevent the damage. In these ways, the Compact creates stringent standards of responsibility for Members.

The responsibility of the State is to establish through science-based evidence where there has been measurable, significant, and adverse change to biological diversity to a species or ecosystem. The Compact has clear definitions of these terms, as well as a fair and reasonable process for determining if a Member should be required to respond to such damage. The heart of that process is (1) establishing a baseline of biological diversity of the affected species and measuring change from that baseline; (2) determining whether the change from that baseline is significant and adverse; (3) assessing whether and how the release of an LMO by a Member caused that damage; and (4) deciding what reponse should be awarded to remedy the damage. The preferred response is remediation, with compensation available in limited circumstances.

Materials, decisions and processes of a claim under the Compact are only for determining whether a Member must provide redress under the Compact. A State cannot use such Compact-related materials for any purpose outside of the Compact, with regard to any Member or non-Member.

The Compact has no impact on non-Members.