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The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges

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Abstract

The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress was finally adopted on 15 October 2010 at Nagoya, Japan. It was negotiated pursuant to a mandate established by the First Conference of the Parties serving as the Meeting of the Parties in 2004 under an enabling provision in the Cartagena Biosafety Protocol. The Supplementary Protocol seeks to deal with damage to biodiversity as well as ‘associated’ traditional material or personal damage. It delineates two pathways to dealing with such damage: the administrative approach that empowers a competent authority to deal with the matter administratively, without initial recourse to courts; and a civil liability approach that requires litigants to seek private law remedies through national legal systems. However, while the Supplementary Protocol has elaborate and comprehensive provisions implementing the administrative approach, it incorporates only a single article on civil liability which does little more than exhort parties to continue to apply their existing domestic law on the subject or establish rules to deal specifically with the matter. This was not the outcome anticipated when the negotiations started. It was the expectation, primarily of developing countries then, that the prospective protocol would deal essentially with civil liability and set out substantive and procedural rules on liability and redress. This article traces how and why all this came to pass. It also analyses the provisions, and the implications, relating to the administrative approach and the single enabling article on civil liability. It deals also with the challenges in implementing the administrative approach, novel to most countries. Finally, it examines the prospect for the emergence in the future of a more elaborate international civil liability regime.

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Notes

  1. The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Montreal 20 January 2000, 2226 U.N.T.S. 208; see also volume 39, International Legal Materials (2000), p. 1027.

  2. The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, in volume 50, International Legal Materials, (2011), p. 105.

  3. The cross-border movement of pharmaceuticals for humans in general is governed by the World Health Organisation’s (WHO) “Certification Scheme on Pharmaceutical Products moving in International Commerce” (Mackenzie et al. 2003: 57).

  4. Article 4. This wording, in turn, has its origin in Article 8(g) of the parent treaty, the Convention on Biological Diversity (CBD) 5 June 1992, 1760 U.N.T.S. 79; see also volume 31, International Legal Materials, (1992), 818.

  5. Vienna Convention on the Law of Treaties, adopted on 23 May 1969, 1155 U.N.T.S. 331.

  6. The Working Group was set up by COP2 of the CBD in November 1995 vide COP Decision II/5. See UNEP/CBD/COP/2/19 available at http://www.cbd.int/doc/?meeting=cop-02.

  7. Earth Negotiations Bulletin, Summary of the First Meeting of the Open-Ended Ad Hoc Working Group on Biosafety, 22–26 July 1996, in Vol. 9, no. 48, Monday, 29 July 1996, p. 9, http://www.iisd.ca/download/pdf/enb0948e.pdf.

  8. Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous wastes and their Disposal, Basel, Adopted on 10 December 1999, UN Doc. UNEP/CHW.5/29, Annex III (1999).

  9. Adopted on 3 May 1996. HNS 1996 (not in force}, 35 International Legal Materials, 1415. Superseded by 2010 Protocol. Adopted on 30 April 2010. Not yet in force. http://www.ecolex.org/ecolex/ledge/view/RecordDetails?id=TRE-001245&index=treaties (accessed on 25 June 2012).

  10. Palau and Bangladesh dropped out almost at the outset. At a late stage one of these vacancies was filled by the Republic of Korea.

  11. The account of the negotiations is based on the author’s personal notes of all of the negotiating sessions, including some not open generally to non-negotiators, and which are set out in Nijar and Gan (2008) and Nijar and Gan (2012).

  12. CBD COP/MOP Decision BS-I/8, 27 February 2004 http://www.biodiv.org).

  13. A Group comprising: Japan, the US, Canada, Australia and New Zealand.

  14. Annex VI on liability arising from environmental emergencies, adopted at Stockholm on 14 June 2005, volume 45 of International Legal Materials p. 5; not yet in force.

  15. The two groups negotiating were, on the one hand—the African Group, Bolivia, Malaysia, Peru and the Republic of Korea; and on the other—Brazil, Paraguay, Mexico, Philippines and South Africa. As to the understanding see UNEP/CBD/BS/COP-MOP/5/17, at p. 21, paragraph 133, http://www.cbd.int/mop5/documents. For the groupings, see Nijar and Gan (2012) at p. 64.

  16. Earth Negotiations Bulletin, Volume 9 Number 495—Monday, 15 February 2010, http://www.iisd.ca/vol09/enb09495e.html.

  17. See submission of Brazil in Nijar and Gan 2012, p. 144.

  18. This is accomplished by a cross-reference to the final three preambular paragraphs of the CPB, which state that trade and environment agreements be mutually supportive and not be subordinate to the other.

  19. The companies are BASF, Bayer CropScience, Dow AgroSciences, DuPont, Monsanto, and Syngenta. The Compact is dated May 17, 2010. It was amended vide First Amended Text 19 November 2010. Available at http://www.croplife.org/view_document.aspx?docld=2919.

  20. See generally on this: Barboza (2011). The Environment, Risk and Liability in International Law, Martinus Nijhoff Publishers.

  21. 1092 U.N.T.S. 279. It entered into force on May 10, 1976.

  22. International Convention on Civil Liability for Oil Pollution Damage of 29 November 1969, (entered into force 19 June 1975), amended by Protocols on: 19 November 1976; 25 May 1984; and 27 November 1992, 26 U.N.T.S. 255.

  23. Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous wastes and their Disposal, Basel, Adopted on 10 December 1999, UN Doc. UNEP/CHW.5/29., Annex III (1999). Not yet in force.

  24. The ‘Paris Convention’ regime was developed by the OECD and so is not global in scope. It comprises: Convention on Third Party Liability in the Field of Nuclear Energy, 1960 and the Convention Supplementary to the 1960 Convention, 956 U.N.T.S. 251, 1650 U.N.T.S. 444; The ‘Vienna Convention’ regime is global in scope, and comprises: Convention on Civil Liability for Nuclear Damage, 1963, 1063 U.N.T.S. 265; Optional Protocol Relating to the Compulsory Settlement of Disputes, 1963. These two regimes—the Paris and the Vienna—are tied together in the Joint Protocol Relating to the Application of the Vienna and the Paris Conventions of 21 September 1988, 1672 U.N.T.S. 302. In addition, see: the Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971, 974 U.N.T.S. 255, and, the Convention on Liability of the Operators of Nuclear Ships, 1962 (has not entered into force as not ratified by any state as yet: INFLEX, Civil Liability for Nuclear Damage: Advantages and Disadvantages of joining the International Nuclear Liability Regime, http://ola.iaea.org/OLA/documents/liability%20regime.pdf, Accessed on 4 Nov 2011).

  25. International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, (adopted 27 November 1992; entered into force 30 May 1996); 1953 U.N.T.S. 373 http://www.imo.org/about/conventions/listofconventions/pages/international-convention-on-the-establishment-of-an-international-fund-for-compensation-for-oil-pollution-damage-(fund).aspx.

  26. Convention on International Liability for Damage Caused by Space Objects (adopted in 1971; entered into force in September 1972), 961 U.N.T.S. 187; also at http://www.oosa.unvienna.org/oosa/SpaceLaw/liability.html.

  27. A notable exception is the UNECE Kiev Protocol on Pollutant Release and Transfer Registers. (Adopted on 26 May 2003; entered into force on 8 October 2009), http://www.unece.org/fileadmin/DAM/env/documents/2003/pp/ch_XXVII_13_ap.pdf. Its article 14 provides that a Party must grant access to its courts to any person aggrieved by a wrongful refusal of a request for information in its pollutant release and transfer register. (http://www.unece.org/env/pp/prtr.html).

  28. Other commentators also take the same view (Jungcurt and Schabus 2010).

  29. The obstacles are highlighted by an identification of the difficulties and implementation challenges in transposing its Directive 2004/35/CE into national law. These include the following: fitting the provisions of the Directive into the existing national frameworks, challenging technical requirements such as the need for economic valuation of environmental damage, the different types of remediation, and damage to protected species and natural habitats, and, the framework character of the Directive which gives wide discretionary power to member States to implement: Report from the Commission to the Council, the European parliament, the European Economic and Social Committee and the Committee of the Regions: Under Article 14(2) of the Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of environmental damage, European Commission, Brussels, 12.10.210, COM(2010) 581 final, at paragraph 21.

Abbreviations

CBD:

Convention on biological diversity

CEP:

Core elements paper

CPB:

Cartagena Protocol on Biosafety

COP/MOP:

Conference of the Parties serving as a Meeting of the Parties

EU:

European Union

FOCC:

Friends of the Co-Chairs

GRULAC:

Group of Latin American and Caribbean Countries

LMO:

Living modified organism

N–KL:

Nagoya–Kuala Lumpur

TEG:

Technical expert group

WG:

Ad Hoc Open-ended Working Group of Legal and Technical Experts on Liability and Redress

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Authors and Affiliations

  1. Law Faculty, Universiti Malaya, 50603, Kuala Lumpur, Malaysia

    Gurdial Singh Nijar

  2. Centre of Excellence for Biodiversity Law, Kuala Lumpur, Malaysia

    Gurdial Singh Nijar

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Nijar, G.S. The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges. Int Environ Agreements 13, 271–290 (2013). https://doi.org/10.1007/s10784-012-9187-9

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