Thomas P. RedickGEEC, LLC

Clayton, MO

www.geeclaw.com

Nagoya Kuala Lumpur Supplemental Protocol on

Liability and Redress

MSU Biosafety

East Lansing, MIJuly 31, 2013

Overview – NKL SP Negotiation History Requirements of the Supplementary Protocol

Relationship to Cartagena & CBDOther liability treaties success-failure

Summary and Issues to Consider Going Forward

• 1996 Ad Hoc Open-Ended Working Group on Biosafety meeting in Aarhus Denmark• “One-pager” refers to Article XIV of CBD

“Examine Issues”• G-77/China insisted on liability being part

of protocol; Africa most insistent• Argentina parted ways with G-77/China

• Divisive issue when Protocol was being negotiated – continued to be contentious and controversial for 15 years.

Biosafety Negotiations - Liability controversy

• 2000 - Cartagena Protocol postpones it -- Article 27 says to hold future negotiations on the topic

• “The [COP] shall, at its first meeting, adopt a process [for]• Elaboration of international rules and

procedures in the field of liability and redress for damage,

• Resulting from transboundary movements of LMOs,

• Analysing and taking due account of the ongoing processes in international law on these matters, and shall …

• Complete this process within four years.”

NKLSP Negotiations - Liability controversy

• Numerous discussions at international meetings related to Protocol

• February 2004,COP-MOP 1 appoint Ad Hoc Expert Working Group.

• Expert Working Group met 5 times from 2005-2008.

• Friends of the Chair working groups further refined issues (“contact groups”) resolving contentious issues.

• Last two meetings – Kuala Lumpur and Nagoya – gave NKLSP its name.

• Final text approved in Nagoya in 2010 at Cartagena Protocol COP-MOP 5.

History of NKL Supplemental Protocol

Binding supplemental protocolAdministrative procedures to address

damages to biological diversity from LMOs, rights belong to governments

Civil liability also binding or just guidelines?Meet the objectives of Article 27 and CBD

Article 14, Rio Principle 13Compact from Seed Industry played a key

role in brokering reasonable compromise – standing ovation

Key issues in NKLSP Negotiations

Binding supplemental protocolAdministrative procedures to address

damages to biological diversity from LMOs – Governments will enforce

Private civil liability not made binding.

Meet the objectives of Article 27 without imposing undue burdens on innovation in agricultural biotechnology and grain trade.

Damage to Biological Diversity“Damage” is significant adverse effect on

the conservation and sustainable use of biological diversity - measurable taking into account scientifically established baseline

Baseline requires inventory of species-habitats that could take years to adequately compile.

International liability precedent of Canada-US “Trail Smelter” case and NKLSP defined “significant” as:Long term or permanent change not redressed

through natural recoveryQualitative and quantitative changes adversely

affecting components of biological diversityReducing ecosystem/biodiversity goods/services

Role of NKLSPFirst multilateral environmental

agreement to define damage to biodiversity

Example – Chinese native rice displaced, lost to future generations of valuable genes?

Confirmation of value of genetic resources and need to protect them from all threats (even if this is just one of many threats)

Industry recognized long-range value of protecting the genetic resources that modern plant breeders rely upon.

Biotech seed industry’s innovative power imparts additional value to the genetic resources in wide range of species (even microbes).

1992 Convention on Biological Diversity objectives: 1) conservation, 2) sustainable use, and 3) equitable distribution of benefit and “appropriate access to genetic resources”

CDB Art. 14 suggested that the parties “examine the issues” of liability, except where internal issue.

Rio Principle 13 has similar suggestion.Cartagena Protocol on Biosafety must

serve objectives of CBD.Cartagena Protocol on Biosafety, ten years

after its text, created a text on liability.

NKLSP & Cartagena & CBD

“Response Measures” Address Harm“Reasonable actions to:Prevent, minimize, contain, mitigate, or otherwise

avoid damage, as appropriate’Restore biological diversity through actions to be

undertaken in the following order of preference:Restoration of biological diversity to the condition

that existed before the damage occurred…“Restoration by replacing the biological diversity

with other components of biological diversity for the same or for another type of use either at the same or, as appropriate, at an alternative location.”

“Sufficient Likelihood Damage will Result”

“Where relevant information … indicates there is sufficient likelihood that damage will result if timely response measures are not take, …”

Examples – chemical storage tank in bad condition and likely to leak or started leaking and is likely to migrate to water body; tank is leaking, enters aquifer but damage is not significant yet.

Oil Spill in Gulf of Mexico -- oil leaking before damage to birds, beaches, etc… but only a matter of time (need to respond)

Administrative Approach – Addressing Harm

Parties can require operators to take certain actions in the event of damage Inform the competent authority Evaluate damage Take response measures

Competent authority can take certain actions: Identify operator which caused damage Evaluate damage and determine response measures to be

taken The competent authority has right to recover from the

operator costs for evaluating damage and any response measure

Decisions requiring response measures should be reasoned and include the opportunity for administrative or judicial review.

Parties may assess whether response measures are already addressed by their domestic law on civil liability

Other Provisions of NKL Supp. ProtocolCausation – need a causal link

between the damage and the LMO (in accordance with domestic law)

Exemptions – can be provided for in domestic law

Time limits – can be provided for in domestic law

Financial limits and financial security – can be provided for in domestic law

“Operator” means “Control”• Who will be liable?• Text: Operator is defined as “any person”• In direct or indirect control of the LMO

• [Including] inter alia, 1) the permit holder, • 2) Person who placed the LMO on the market,• 3) Developer (i.e., biotech seed company),• 4) Producer (farmers), • 5) Notifier, ???• 6) Exporter, importer, carrier, or supplier.” • as appropriate and as determined by domestic

law, • This gave the International Grain Trade

Coalition qualms during the negotiation process.

Provide for rules and procedures that address damage

Apply existing domestic lawDevelop new civil liability rules and

proceduresDo a combination of the twoCan address “material or personal damage”Shall address: (1) damage (2) standard of

liability (3) channeling of liability and (4) right to bring claims

Civil Liability and Supplementary Protocol

LMOs, not products of LMOs (i.e., food, feed etc not in scope)

“Traditional” Damages (personal or property injury) that are do not relate to conservation and sustainable use of biological diversity (CSUB)

Taking also into account risks to human health linked to CSUB)

Domestically produced LMOs

Exclusions from Scope

Comes into force after 40 countries have ratified it.

Signature and ratification are not implementation – not self. implementing (but also may not require legal actions).

To date, 54 countries have signed; 14 have ratified.

Status of Supplementary Protocol

Opened for signature 7 March 2011. Stayed open for signature until 6 March

2012 for 166 parties to Biosafety Protocol54 Nations have signed but still need 40

ratifications… are they well on their way?Ratified/Accession – 14 so far…

Albania, Bulgaria, Czech Republic, European Union, Ireland, Latvia, Lithuania, Luxembourg, Mexico, Mongolia, Norway, Spain, Sweden, Syrian Arab Republic

Entry into force on the 90th day after deposit of the 40th instrument of ratification, acceptance, approval or accession (Art. 18).

Ratification Status for NKLSP

Albania, Antigua & Barbuda, Austria, Belgium, Benin, Bulgaria, Cape Verde, C.A.R., Chad, Colombia, Cyprus, Czech Republic, Denmark, European Union, Finland, France, Germany, Guinea-Bissau, Hungary, India, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Madagascar, Mauritania, Mexico, Mongolia, Montenegro, Mozambique, Netherlands, Nigeria, Norway, Panama, Peru, Poland, Portugal, Republic of Moldova, Romania, Senegal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syrian Arab Republic, Thailand, Togo, Tunisia, Ukraine, & U.K.

Signature List for NKLSP (54 of 166)

Albania, Antigua & Barbuda, Austria, Belgium, Benin, Bulgaria, Cape Verde, C.A.R., Chad, Colombia, Cyprus, Czech Republic, Denmark, European Union, Finland, France, Germany, Guinea-Bissau, Hungary, India, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Madagascar, Mauritania, Mexico, Mongolia, Montenegro, Mozambique, Netherlands, Nigeria, Norway, Panama, Peru, Poland, Portugal, Republic of Moldova, Romania, Senegal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syrian Arab Republic, Thailand, Togo, Tunisia, Ukraine, U.K.

Signature List for NKLSP (54 of 166)

International Oil Pollution Compensation (1971 Fund, the 1992 Fund and 2003 Supplementary Fund) – operating but inadequate?

IAEA Convention on Nuclear Incidents (But Nordics reluctant to bring Chernobyl claims)

Basel Convention Hazardous Waste. Liability Protocol needs 20 ratificationsSignatories: 13, Parties: 11 (7 from Africa)Dead in water?Provisional application ok between parties that

have ratified, before entry into force?Compact may enable 1st successful liability

protocol.

Ratification Status for Other International Environmental Liability Treaties

Thanks!

tpr@geeclaw.com