The convention on Biodiversity (CBD) is so far one of the treaties which is potentially applicable to all species and habitats on the planet. It has as objectives, the conservation of biodiversity, the sustainable use of natural resources and the fair and equitable sharing of benefits deriving from the use of genetic resources. From the above complements of the CBD, there is no gainsaying that its overall goal is to reduce all potential threats to biodiversity. The CBD however embraces biotechnology and defines it in Article 2 as "any technological application that uses biological system, living organisms or derivatives thereof, to make or modify products and processes for specific use"

Such products resulting from the application of modern biotechnology are referred to as " living modified organisms" (LMOs) or " genetic modified organisms" (GMOs). The CBD only introduces the term LMOs but does not define it. However, the Cartagena Protocol on Biosafety to the CBD hereinafter referred to as the Protocol, defines LMOs as "any living organism that possesses a novel combination of genetic materials obtained through the use of modern biotechnology". Generally, LMOs refer to any organism in which the genetic material has been altered in a way which does not occur naturally by mating and/or natural recombination, and/or natural or induced mutation, having the capacity to replicate or transmit that genetic material.

The Protocol however, was the outcome of the second meeting of the conference of the Parties (Cop II) where the need for biosafety regulations was raised. Biosafety within this context is generally used to describe the policies and procedures adopted to ensure the environmentally safe application of modern biotechnology as provided in Article 19 (3) of the CBD.If one is to appreciate the objectives of the protocol, it goes without saying that the general spirit is positive since it provides an international regulatory framework to reconcile the respective needs of trade and environmental protection in a rapidly growing biotechnology industry. Such a regulatory framework therefore gives the opportunity for contracting parties to provide mechanisms for assessing, managing and controlling risks associated with the use, the release and the transboundary movement of GMOs, or Organisms with novel traits resulting from this technology which are likely to have an adverse environmental impact that could affect the conservation and sustainable use of biodiversity, taking into account also the risk to human, animal and plant health, their socio-economic impacts, while maximizing the advantage of this new found technology relative to traditional biotechnology.

The protocol as an integral part of the CBD must therefore be cogent enough to contain provisions, which not only address the issues on biosafety, but also to realize the objectives enshrined in the CBD. The above-mentioned overall goal of the CBD, should therefore be considered as a leading principle in whatever issue or problem the protocol was meant to address or solve respectively. Assuring compliance with biosafety regulations is very important to foster public acceptance and further development of modern biotechnology. And this will be most effective and practical if the threats to biodiversity conservation is of paramount consideration.

No matter the criteria used to x-ray the whole process of biotechnology, we should be able to note that biotechnology is not an adventure but an investment. This is because a handful of its products are meant for commercialization especially in the pharmaceutical and agricultural sectors. Such increase in trade has given rise to international public concern that these products may pose important risks to the environment and to human health (Thomas Mc Garity, 1991). States are nevertheless bound to take all appropriate measures to prevent or minimize the risk of significant transboundary harm and if such harm has occurred, to minimize its effects. The obligation to prevent damage resulting from modern biotechnology as stipulated in principles 13, and 15 of the Rio Declaration and Article 14(1) of the CBD remains paramount; hence a leading concept in the field of biosafety regulations.

Principle 13 however, highlights on the fact that states should be able to develop national and international law regarding liability and compensation. Principles 15 of the same declaration goes further to stress on the use of the precautionary approach by states in the field of environmental protection, according to their capabilities. The question in law is how can such a key concept as stated above be instrumental to biosafety regulations in the absence of detailed provisions on liability and compensation in the protocol? Rules on liability generally perform a preventive function by acting as an incentive to the liable person to prevent any damage from occurring. Article 27 of the Protocol simply refers to liability and redress but does not give detailed and concise provisions on these subjects. It provides that " the COP….. shall adopt a process with respect to the appropriate elaboration of international rules and procedures in the fields of liability and redress for damages resulting from transboundary movements of LMOs……." . The fact that the overall goal of the CBD is to reduce all potential threats to biosafety and the Protocol which is an integral part of the CBD does not elaborate on issues surrounding liability and compensation, means that on can be forced to belief that there were a good number of controversies and obscurities prior to the drafting of the Protocol.

This is simply because the lack of liability and compensation provisions to my mind defeats the purpose or overall objectives of the CBD. Liability is an off-shot of damage and therefore it will be funny talking about damage when there is no liability. States parties should be responsible for any transactions regarding transport, intended or unintended use for scientific or commercial purposes. Consider the case where LMOs might propagate across national boundaries causing damage to biodiversity of other states or areas beyond national jurisdiction, who is going to bear the loss? In order to fulfill the reparative function of liability, the victims of damage, or states seriously affected by the significant reduction or loss of biodiversity resulting from LMOs should not have to bear the cost of reparation. It is therefore germane for this burden to be shifted to those who benefit from the production and the transboundary movement of the LMOs. States of origin should therefore be strictly liable and the harm must be fully compensated.

In conclusion, we have to note that rules on liability generally perform a preventive, corrective and reparative functions. The inclusion of such provision in the protocol is very imperative and urgent. This, once done will overhaul the biosafety regulations machinery. The period of four years provided in Article 27 (supra) is too long a time to address such a sensitive and complex issue. Article 27 (supra) therefore renders the protocol incomplete. This is because liability and compensation provisions are important instruments in the conservations of biodiversity. We should be able to address the issue on liability and compensation in the Protocol as a matter of urgency, since it constitutes the fulcrum of biosafety.