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A Pessimistic Perception of the Nagoya - Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety

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A PESSIMISTIC PERCEPTION OF THE NAGOYA - KUALA LUMPUR SUPPLEMENTARY PROTOCOL ON LIABILITY AND REDRESS TO THE CARTAGENA PROTOCOL ON BIOSAFETY

Sanu M.K.

Abstract

The Conference of the Parties to the Convention on Biological Diversity serving as the meeting of the Parties to the Cartagena Protocol on Biosafety by Decision BS-V/11 adopted the Nagoya - Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety at its fifth meeting. The Supplementary Protocol is the result of negotiations of almost ten years. The article briefly examines the negotiating history of the SP. Then the provisions of the SP are viewed through the negotiations. The paper tries to demonstrate how the LMO exporting countries and the industry successfully campaigned for a liability regime suiting their interests. It is argued that the new agreement is a failure by its own standards. It cannot be a starting point as many believe. It will promote complacency instead of encouraging attempts to negotiate a civil liability regime for the transboundary movements of Living Modified Organisms.

Pessimism is barely a catchword in the contemporary world. Present day tells us to concentrate on the positives while ignoring the negatives. A balanced approach is to analyze both sides. But taking sides is a political activity that might lead us to the right direction. This paper does take sides and long for a strong liability regime for the transboundary movements (TBMs) of Living Modified Organisms (LMOs) so that the unaccountable (respecting the role of biosafety laws) market manufacturing tendencies of the life science corporations could be curbed. An effective and efficient liability and redress mechanism is a sine qua none for the realization of the rights and obligations of parties. In other words, such a mechanism ensures that those who at the receiving end can demand the redress (curative measures and compensation) and the wrongdoer has a duty to comply with that demand. It is of utmost importance that entities involved in the TBMs of damage causing LMOs must be liable for the adverse effects of the same. In that parlance, it was only logical that a liability regime be concluded covering the TBMs of LMOs, considering the considerable increase in the international movement of such products and the uncertainty surrounding their risky nature. Depicting the adverse effects of LMOs is quite unnecessary here because the existence of the Biosafety Protocol (BSP), 2000, endorses most of them. A Biosafety Protocol without specific liability imposing provisions was a big letdown, even though such a course of action was necessary for the treaty's successful culmination. Now, those who are responsible for the TBMs of LMOs are destined to be liable. The Conference of the Parties to the Convention on Biological Diversity (CBD) serving as the meeting of the Parties to the Cartagena Protocol on Biosafety (COP/MOP) by Decision BS-V/11 adopted the Nagoya - Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety (hereinafter Supplementary Protocol or 'SP') at its fifth meeting (October 2010). The SP will be open for signature from 7th March 2011 to 6th March 2012. At this point of time, almost all countries, including those who were at loggerheads during the negotiations, are hailing the historic adoption of the SP. The SP puts forward an administrative approach by which domestic administrative authorities can hold the responsible operators liable for the damage caused. This article ventures into analyzing whether the results of the protracted negotiations of almost ten years is a milestone in the international biosafety regulatory regime. The following part will examine the negotiating history of the SP before moving on to dissect its provisions.

1. Negotiating History

The Consolidated Text of Draft Articles at the end of BSWG-3 (Open-ended Ad Hoc Working Group) during the BSP negotiations contained seven options concerning the issue of liability. Option 1 contained no provisions, while Option 2 concentrated on the development of article 14(2) of the CBD . Option 3 suggested the state of LMO origin to negotiate with the affected States on the legal consequences of the damage where the costs of prevention and restoration shall be borne by the State of origin. The State of origin also has to bear the costs of restoration or compensation in case of adverse effects to the biodiversity, socio-economic welfare of a state and damage to person or property. The Option offered Parties to elaborate a liability and redress mechanism, including the possibilities of arbitration or intentional undertaking of the International Court of Justice jurisdiction. Under Option 4, the exporting Party would be liable for the unforeseen adverse effects (on the basis of the information provided for the first import), for the breach of Protocol obligations and for illegal traffic and unintentional TBMs. According to Option 5, compensation is to be provided by an exporter for the damage caused by the TBM of LMOs. Option 6 called the Parties to choose the rules and procedures for liability and redress in accordance with article 14(2) of the CBD. The last option covered the international obligation (responsibility of Parties) on the conservation and sustainable use of biodiversity to ensure recourse to the legal system and payment of compensation. Several developed countries expressed concerns over the prolonged nature of international liability agreement negotiations. A few other developed countries felt that the matter could be handled under domestic law of product liability . While most developing countries stressed that it was indiscreet to provide for a safety regime without providing for consequences of accidents (some others noting the absence of a general law on liability), demanded a tailor-made regime. BSWG-6 attempted a compromise between the polarized positions (provision for a stringent liability regime and the deletion of the article) and finally settled for article 27.

1.A. Process under Article 27

Article 27 of the BSP reads thus;

The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms, analysing and taking due account of the ongoing processes in international law on these matters, and shall endeavour to complete this process within four years.

Article 27 mandated the COP/MOP-1 to; 1) adopt a process

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