1. Thomas P. Redick
GEEC, LLC
Clayton, MO
www.geeclaw.com
MSU Biosafety
East Lansing, MI
July 31, 2013

2.  Negotiation History
Requirements of the
Supplementary Protocol
Relationship to Cartagena & CBD
Other liability treaties success-
failure
Summary and Issues to Consider
Going Forward

3. • 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.

4. • 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.”

5. • 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.

6.  Binding supplemental protocol
 Administrative 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 13
 Compact from Seed Industry played a
key role in brokering reasonable
compromise – standing ovation

7.  Administrative 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.

8.  “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 recovery
 Qualitative and quantitative changes adversely
affecting components of biological diversity
 Reducing ecosystem/biodiversity goods/services

9.  First 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).

10.  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.

11. “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.”

12.  “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)

13.  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

14.  Causation – 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

15. • 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.

16.  Provide for rules and procedures that
address damage
 Apply existing domestic law
 Develop new civil liability rules and
procedures
 Do a combination of the two
 Can address “material or personal
damage”
 Shall address: (1) damage (2) standard of
liability (3) channeling of liability and (4)
right to bring claims

17. 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

18. 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.

19.  Opened for signature 7 March 2011.
 Stayed open for signature until 6 March
2012 for 166 parties to Biosafety Protocol
 54 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).

20. 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.

21. 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.

22.  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 ratifications
 Signatories: 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.