POSITION DOCUMENT REGARDING CIVIL RESPONSIBILITY AND RESTORATION IN THE
CONVENTION ON BIOLOGICAL DIVERSITY MOP VIII -- CBD

Curitiba, March 2006

GENERAL ASPECTS

The model of civilization based on oil is being challenged more and more, and the transition to a post-oil model is inevitable. Damages made to biodiversity have not only transformed extended regions where the oil industry operates, but have also immersed the people who inhabit these regions in poverty.

With oil prices being so high, now is the time to begin urgent restoration processes, without excuses. Both enterprises and States, which received much higher earnings than those programmed, must start taking environmental restoration measures in the intervened areas. They must endeavor to prevent that the injured communities and the intervened areas be doomed forever to sickness and death, provoked by the undeniable contamination caused by irresponsible exploitation.

Impacts on biodiversity can be cumulative and produce cascade effects on
the trophic food chain, not only in a specific ecosystem but also in other ecosystems, which are not identified immediately, since the effects on them appear much later.

Oilwatch proposes the development of a Protocol on Civil Responsibility and Restoration from an integral perspective, in order to restore those ecosystems that have been deteriorated. This will allow the local inhabitants to recover their rights to make a living and to live healthily.

A Protocol on Civil Responsibility and Restoration will permit the corresponding authorities to stop the impunity, double standard and illegal activities under which the oil industry operates, mainly in Third World countries where, paradoxically, the zones with greatest biodiversity in the planet are found.

Within this Protocol, the environmental restoration must include spillage cleaning, recuperation of sustainability conditions for the local inhabitants and restoration of resources. This implies actions and proposals at different levels, from the local inhabitants up to the State's technical institutions, including the environmental community.

Moreover, it is necessary to counter a growing trend within the same industry to make environmental recovery a new business. Instead of solving the problems of impoverishment of the local inhabitants and the destruction of the biodiversity, it has become big businesses that postpone the environmental problems and, in many cases, make them worse.

The high oil prices are causing a series of fast transformations in the hydrocarbon industry. On one side, there are concentrated exploration and oil field control campaigns, through contracts, privatizations, and through the application of different type of pressures, and on the other side, a change of the oil industry that seeks more profits through the development and control of other energy sources. For example, mixture of fuels is being announced, through the addition of bio-fuels (with new and inauspicious impacts on the environment) within the energetic matrix of the different countries. Lastly, the "green" businesses, which have to do with environmental recuperation, the sales of carbon and the links between the oil industry and big NGO's are growing strongly.

The present Protocol on Civil responsibility and Restoration will, at least, solve part of the existing conflicts with the oil industry, but could also apply to other activities that likewise attempt against biodiversity and indemnify the communities that have preserved and cared for the biodiversity.

INSTITUTIONAL FRAME

- The discussion of civil responsibility and restoration is already part of the international proposals for the regulation of the issues linked to biodiversity. Thus, decision VI/11 from the Conference of the Parties to the Convention on Biological Diversity gathered a group of technical end legal experts to develop an analysis on responsibility and restoration within the context of paragraph 2, 3 and 4 of Article 14.2 of the Convention on Biological Diversity.

- The Convention on biological Diversity recognizes the need to protect biodiversity and it incorporates concepts about the loss of biodiversity, the need to prevent damage to the environment and recognizes the spiritual and cultural damage resulting from damages to biodiversity. In the framework of this convention, several documents, decisions and regulations have been developed which emphasize the importance of the biodiversity.

It appears from the different documents that the restoration cannot and must not be treated exclusively as a technical issue, but that it is linked to political aspects as well as to the application of human, collective and environmental rights.

PROTOCOL ON CIVIL RESPONSIBILITY AND RESTORATION

"Civil Responsibility" is an instrument that allows for action against public or private entities, enterprises, for actions committed by them that imply destruction of biodiversity, taking into account that this not only includes species in danger of extinction, but also ecosystems and related ecosystems on the whole.
Also, responsibility cases against the State may be pursued because of lack of control for ensuring the conservation and sustainable use of biodiversity.

"Social and Environmental Restoration" must allow the reconstruction of the social and environmental texture of the intervened zones and satisfy the needs, the development of capacities and the fulfillment of the aspirations of those towns or villages that have suffered the impacts of extraction activities.

The Protocol will be binding for social and environmental damages caused
in zones within the limits of national jurisdiction or under control of one of the countries that form part of the Convention of Biological Diversity. Other mechanisms to apply this protocol internationally must be found.

Based on the present Protocol, it will be possible to evaluate and repair damages to biodiversity, the environment and the local inhabitants.

Since damages to biodiversity and to natural ecosystems imply potential impacts in the long run, which are cumulative and which create synergy with other environmental elements or with human health, the generated responsibility will not become prescribed.

The responsibility caused by damages or detriment of biodiversity and the natural ecosystems shall be objective and direct. Culpable responsibility can also be considered in cases of intentional, imprudent or negligent omission, under the principle of shared and differentiated responsibility.

When the question is about damage or deterioration of biodiversity, impacts on human health, socio-economical conditions, and the different effects that stem from the activity that generated said damages or which cause the detriment of biodiversity must be included.

1. DAMAGE ASSESSMENT

- For the assessment of damages, non-traditional instruments must be used, instruments that include other aspects than the purely economic, without ignoring them. It must taken into account that there are impacts that are invaluable, which can not be quantified, and which should have special treatment, including penal measures.

- When the damages are valuated, special attention must be paid to impacts and consequences of the damage or environmental detriment on women and children, for the future implications that may result from affecting this vulnerable part of society.

- In the assessment of damages, ecological analysis criteria must be applied, so that not only the separate components of an ecosystem are valuated, but also the related ecosystems and the impact that the detriment of one ecosystem can have on other ecosystems.

2. DAMAGE REPARATION

- Responsibility for social and environmental restoration must include, besides direct damages, detriment or loss caused directly or indirectly to economical wellbeing, socio-cultural practices, knowledge systems and ancestral practices of native inhabitants and other local communities.

- Responsibility will encompass impacts generated in all phases of extraction activities.

- When the impact has taken place in the native and other local communities' productive systems, restoration must seek to re-establish their capacity for sustainable living.

- The technology used during restoration must be done following precaution principles.
- In cases of moral damages, damages to property or irreversible damage, indemnification must apply and not "economical compensation"

3. SHARED AND DIFFERENTIATED RESPONSIBILITY

- The operator of the activity shall be the main responsible of all demands for damages, economic losses, and costs related to environmental restoration.

- There will also be a residual responsibility for lack of compliance with rules, norms, procedures, etc., where public offices, local governments or staff members that authorized the activity may be held liable.

- Special measures must be taken, including penal measures, in cases
of deliberate contamination of water, deforestation or destruction of resources.
- In the case of negative impacts in protected areas or native
territories, responsibility must be greater, as collective rights are
wronged and sanctions should be penal, civil sanctions notwithstanding.

4. PARTICIPATION OF THE WRONGED PARTS

- Restoration actions must be made by enterprises or entities, qualified by the pertinent authorities of each country, and they must be accepted by the affected parties.

- For the final acceptance of restoration works, there must be a formal acceptance by the competent authorities, who must apply a public inquest in order to gather the opinions of the injured and interested parties.

- The competent authorities must guarantee the participation of the injured parties for the determination of priorities, control of the processes and the compliance with human, collective and environmental rights.

- Guarantees must be created for those who work in the restoration.

5. COMPLAINTS

- Restoration lawsuits cannot be vented in International Arbitration Courts, because these constitute a breach on the sovereignty of the States.

- Restoration can be claimed by: The State, local governments, the directly affected parties, interested parties acting for the recovery of common interests and individuals.

Oilwatch, CURITIBA, March 2006

The Oilwatch network is made up of more than 100 organizations in Africa, Asia and Latin America. It was established 10 years ago, driven by the necessity of the development of global strategies for the defense of communities, injured by the oil exploitation activities and to support their resistance processes in the struggle against these activities.
Oilwatch endeavors to create growth of global environmental conscience through the exposure of: the impacts that the oil exploitation activities have on tropical forests and their local inhabitants; establishing the relationship between these activities and the destruction of biodiversity and climatic changes; exposing the
unpunished violation of the human rights of the local inhabitants.