The Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety

Abstract

AbstractThe Cartagena Protocol on Biosafety (hereafter: Cartagena Protocol) was adopted on 29 January 2000 as a supplementary agreement to the Convention on Biological Diversity and entered into force on 11 September 2003. The Cartagena Protocol pursues the goal of reconciling the economic interests of the biotechnology industry with environmental concerns and, by doing so, is supposed to provide a framework to meet the respective needs of trade and environmental protection with respect to the rapidly growing global biotechnology industry. On the one hand, the Protocol is designed to enable the access to and transfer of technologies regarding the development and use of living modified organisms (LMOs) which are seen to potentially provide considerable socio-economic benefits. Such a typically commercial use may be contained in controlled settings, or involve the release of the organisms into the environment for application in agricultural or industrial production-processes or products. This entails serious risks of environmental damage. The Cartagena Protocol, therefore, seeks to ensure the development of appropriate procedures to enhance the safety of biotechnology, to reduce potential threats to biological diversity, taking also into account the risks to human health. It does so with a particular focus on transboundary movements. The reasons cited for the need for a specific liability regime regarding LMOs and the potential damage they may cause relate to many of the specific problems associated with such organisms: For example, once LMOs are released, the transgenes cannot be easily recalled or removed from the environment. There may be possible long-term effects, whereby damage may only appear over time or even increase incrementally over time. Furthermore, some of the difficulties common to liability in an environmental damage context become acute when dealing with LMOs, such as in proving damage and causation, valuing areas damaged by LMOs, which may be not as well developed under existing liability regimes, as well as defining the affected persons who can bring a claim, e.g., on behalf of the environment or affected communities.