January 10, 2011
Volume 15, Issue 41

The 2010 Nagoya-Kuala Lumpur Supplementary Protocol: A
New Treaty Assigning Transboundary Liability and Redress
for Biodiversity Damage Caused by Genetically Modified
Organisms
By Anastasia Telesetsky

" ... The key actors who may potentially trigger a claim under the Supplementary
Protocol are the “operators” who include any person in “direct or indirect
control” of an LMO. Just as the International Convention on Civil Liability for
Compensation for Oil Pollution Damage was negotiated to apply to private
actors,[18] the term “owner” in the Supplementary Protocol was defined
broadly to include non-state actors, including any group in the chain of
custody of LMOs.[19]
A major source of contention was whether the text would cover not just LMOs
but “products thereof” (such as tofu produced from transgenic soybeans).
Some States argued that the language “products thereof” would expand the
Supplementary Protocol beyond the scope of the Cartagena Protocol. The
language was ultimately removed from the text, but the Parties agreed that
States could apply the Supplementary Protocol to damage caused by
processed materials from LMOs as long as a causal link is established.[20]
Applying domestic law on causation, a claimant must demonstrate a causal
link between the claimed damage and the introduction of an LMO across a
boundary.[21] ... "

(...)   (...)

For the time being, however, the failure to attract ratifications from major
biotech producing States raises questions about the legitimacy of the
Supplementary Protocol as a tool for ensuring appropriate liability and redress
for ecological damage and impacts on human health. As noted in the
Conference of Parties Decision BS-V/11, the private sector has undertaken
some initiatives to ensure recourse in the event of environmental damage
caused by LMOs.[41] Some argue that it was the leadership from the private
biotech sector, by agreeing to subject its industry to civil liability to ensure a
generally liberalized market in LMOs, that made it possible for States to
accept the current draft of the Supplementary Protocol. In 2010, BASF, Bayer
CropScience, Dow AgroSciences, DuPont, Monsanto, and Syngenta signed
“The Compact: A Contractual Mechanism for Response in the Event of
Damage to Biological Diversity Caused by the Release of a Living Modified
Organism.”[42] As members to the Compact, these companies agreed to
binding arbitration under the auspices of the Permanent Court of Arbitration if
a company has released an LMO that is alleged to have caused damage to
biological diversity. As corporate leaders, these companies indicated that they
expect Compact members to be properly insured to absorb potential financial
losses.
Interestingly enough, the Compact, in contrast to the Supplementary Protocol,
provided for specifically elaborated legal standards[43] and an industry
contract to limit the partiesʼ liability.[44] Similarly, where the Supplementary
Protocol requires a response for damage arising from both intentional and
unintentional transboundary movements,[45] the Compact members limited
member liability for transboundary movements of LMOs to misuses.[46]
Likewise, where the Supplementary Protocol provides an open-ended
definition for “significant” adverse effects, the Compact specifically limited
compensable environmental damage.[47] Notably, the Compact, unlike the
Supplementary Protocol, does not explicitly address adverse effects on human
health...."

Nagoya Meeting Spawns New Biosafety Treaty

Bridges Trade BioRes • Volume 10 • Number 19 •
25th October 2010

“...There remain serious issues in need of priority consideration and urgent action,” said Sebastian Marino of Palau, one of two officials representing Asia-Pacific countries. Marino said that before the Protocol can be successfully carried out, his region must address shortages in capacity building, financial resources, information exchange, and technology transfer....

In addition, the Asia and Pacific group would like to highlight the equal importance of socio-economic considerations,” Marino said, alluding to the right of developing countries to refuse to import GM products if they are perceived to damage the socio-economic well-being of the country or community into which it is being introduced. ..."

New treaty on liability for GMO damage

"... The two main substantive issues that were the subject of the negotiations - whether or not products of LMOs ('products thereof') should be covered by the scope of the Supplementary Protocol, and the provisions on financial security - were finally resolved after very long and difficult negotiations which dragged on for an extra two days beyond the scheduled time. While mention of 'products thereof' was eventually removed from the operative text of the Supplementary Protocol, the report of the meeting records an understanding that Parties may apply the Supplementary Protocol to damage caused by processed materials that are of LMO origin, provided that a causal link is established between the damage and the LMO in question. This understanding is significant as it clarifies that the Supplementary Protocol may apply to damage caused not only by LMOs but also by their products, which may be non-living material. The scope of the Cartagena Protocol is limited only to living modified organisms; however, the issue of products thereof is covered by the Cartagena Protocol with regard to information sharing, and in information required in notifications for the advance informed agreement (AIA) and simplified procedure, as well as in the principles for risk assessment.The right of Parties to provide for financial security is also enshrined in the Supplementary Protocol. Financial security is important to ensure that, if for any reason, the responsible party cannot pay for the damage caused by an LMO, there will be some means available to do so.

(...   ...)

The birth of this new multilateral environmental agreement has been a difficult one, with many compromises made along the way. A major change has been the shift from a civil liability regime to an administrative approach focusing on response measures, which emerged from the ashes of the near-collapsed negotiations in Bonn in 2008. ...)