What has been done on Liability and Redress

Conference of the Parties serving as the meeting of the Parties to the Cartagena Protocol on Biosafety (COP-MOP)

At its tenth meeting, the COP-MOP adopted decision CP-10/13. As at the previous meeting, the decision was taken only by Parties to the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress. In the decision, the Parties to the Supplementary Protocol noted with regret the limited number of Parties to the Cartagena Protocol on Biosafety that have ratified the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress and underlined the importance of awareness-raising and capacity-building activities to support further ratifications and implementation of the Supplementary Protocol. The decision welcomed the study on financial security mechanisms, reminded Parties of the polluter pays principle and encouraged them to take this principle into account, where applicable, when further developing financial security mechanisms. Parties to the Supplementary Protocol were requested and other Governments were invited to submit information to the Executive Secretary on the measures they have in place to provide for financial security for damage from living modified organisms. The information submitted will be compiled for consideration by Parties at their next meeting. The Parties to the Supplementary Protocol welcomed the goal on the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress in the Implementation Plan and in the Capacity-building Action Plan for the Cartagena Protocol on Biosafety, as well as the related capacity-building activities, and the inclusion of questions on the Supplementary Protocol in the format for the fifth national report. Finally, the Parties to the Supplementary Protocol decided that the first assessment and review of the effectiveness of the Supplementary Protocol shall be undertaken in the context of the fifth assessment and review of the effectiveness of the Cartagena Protocol.

At its ninth meeting, the COP-MOP adopted decision CP-9/15. The decision was taken by Parties to the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress, in accordance with Article 14, paragraph 1, of the Supplementary Protocol. In decision CP-9/15 the Parties to the Supplementary Protocol welcomed the entry into force of the Supplementary Protocol, they congratulated the Parties that had deposited their instrument of ratification, acceptance, approval or accession to the Supplementary Protocol and urged all Parties to the Cartagena Protocol that had not yet done so, to become Party to the Supplementary Protocol as soon as possible. In decision CP-9/15, Parties to the Supplementary Protocol were requested to designate a competent authority to perform the functions set out in Article 5 of the instrument, and to make the contact information of its competent authority available on the Biosafety Clearing House. Parties to the Supplementary Protocol were furthermore requested to report on the domestic measures to implement the Supplementary Protocol, by responding to the relevant questions in the format for the fourth national reports. Through decision CP-9/15, the Executive Secretary was requested to undertake a comprehensive study as outlined in Article 10 of the Supplementary Protocol, concerning among others modalities of financial security mechanisms.

At its fifth meeting, in its decision BS-V/11 the COP-MOP adopted the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress. The Supplementary Protocol provides for international rules and procedure on liability and redress for damage to biodiversity resulting from LMOs. COP-MOP 5 requested the UN Secretary-General to open the Supplementary Protocol for signature from 7 March 2011 to 6 March 2012 and called upon parties to the Biosafety Protocol to sign and ratify it at the earliest opportunity. The COP-MOP also decided that additional and supplementary compensation measures may be taken in instances where the costs of response measures provided for in the Supplementary Protocol are not covered and that those measures may include arrangements to be addressed by the COP-MOP. Furthermore, the COP-MOP urged Parties to cooperate in the development and/or strengthening of human resources and institutional capacities relating to the implementation of the Supplementary Protocol and invited Parties to take this into account in formulating bilateral, regional and multilateral assistance to developing country Parties.

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The group of the Friends of the Co-Chairs

The fourth meeting of the Group of the Friends of the Co-Chairs on Liability and Redress in the Context of the Cartagena Protocol on Biosafety took place from 6 to 11 October 2010, in Nagoya, Japan. It was initially planned to be a three day meeting (6-8 October 2010). However, more time was needed to resolve the outstanding issues prior to the opening of the fifth meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol (COP-MOP 5), and, therefore, the meeting was extended. The Group concluded its work at 2 a.m. on 11 October 2011, just eight hours before the opening of COP-MOP 5. The Group agreed to name the Protocol after the cities of Nagoya where it is adopted, and Kuala Lumpur, the city where the first mandate to negotiate international rules and procedures on liability and redress was adopted by the decision of the first meeting of COP-MOP and two of the meetings of the Group of Friends of the Co-Chairs were held. Accordingly, the Group submitted to COP-MOP 5 the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety, together with a draft decision for consideration and adoption. The report of the Group is available as document UNEP/CBD/BS/GF-L&R/4/3

The third meeting of the Group of the Friends of the Co-Chairs on Liability and Redress in the Context of the Cartagena Protocol on Biosafety took place from 15 to 19 June 2010, in Kuala Lumpur, Malaysia. The Group further negotiated the draft supplementary protocol on liability and redress to the Biosafety Protocol. The Group also considered draft guidelines on civil liability prepared by the Co-Chairs following the Group’s request at the end of the last meeting. Comments and text changes on the draft were received from Friends and observers prior to and during the meeting. Those comments proposed in the form of text were incorporated into the Co-Chairs draft and a consolidated text was prepared during the meeting and attached to the report of the meeting for future consideration. The Group agreed to hold a fourth meeting in Nagoya, Japan from 6 to 8 October 2010, immediately before to the fifth meeting of the Conference of the Parties serving as the meeting of the Parties to the Protocol, to address some outstanding issues.

The second meeting of the Group of the Friends of the Co-Chairs on Liability and Redress in the context of the Cartagena Protocol on Biosafety was held from 8 to 12 February 2010 at the Putrajaya International Convention Centre in Kuala Lumpur, Malaysia. The Group further negotiated international rules and procedures on liability and redress for damage resulting from transboundary movements of living modified organisms based on the draft text for a supplementary protocol on liability and redress to the Biosafety Protocol as contained in the report of its first meeting. The Group agreed to hold a third meeting in Kuala Lumpur, Malaysia, from 15 to 19 June 2010.

The first meeting of the Friends of the Co-Chairs on Liability and Redress was held from 23 to 27 February 2009 in Mexico City, Mexico. The meeting further negotiated international rules and procedures on liability and redress for damage resulting from transboundary movements of living modified organisms in the context of the Protocol, based on the proposed operational texts contained in the Annex to decision BS-IV/12 of the fourth meeting of the Parties to the Protocol. The Group agreed to work towards a legally binding instrument in the form of a supplementary protocol with the understanding that the final decision in this regard would only be taken by the Conference of the Parties serving as the meeting of the Parties to the Protocol. It produced a draft text for a supplementary protocol on liability and redress to the Biosafety Protocol, which will serve as a basis for further negotiations. The Group decided to have a second meeting early next year.

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Open-Ended Ad Hoc Working Group of legal and technical experts on liability and redress

Further to decision BS-I/8, the Ad Hoc Group on Liability and Redress was composed of representatives nominated by Parties to the Protocol, open to the participation as observers of any State not a Party to the Protocol, international organizations, non-governmental organizations and industry. It was mandated to undertake the following tasks:

• Review the information relating to liability and redress for damage resulting from transboundary movements of LMOs;
• Analyse general issues relating to the potential and/or actual damage scenarios of concerns, and application of international rules and procedures on liability and redress to the damage scenarios;
• Elaborate options for elements of rules and procedures on liability and redress, including definition and nature of damage, valuation of damage to biodiversity and to human health, threshold of damage, causation, channeling of liability, roles of Parties of import and export, standard of liability, mechanisms of financial security and right to bring claims.

The fifth meeting of the Working Group on Liability and Redress took place from 12 to 19 March 2008 in Cartagena, Colombia. At this meeting, the Working Group revised the working draft on the elaboration of options for rules and procedures in the context of Article 27 of the Protocol. During this meeting, a small Friends of the Co-Chairs group was established to further the negotiations. The group agreed to some core elements and reduced options for operational text identified pertaining to liability and redress. These outcomes are contained in annex II to the report of the meeting in document UNEP/CBD/BS/WG-L&R/5/3. The Working Group also agreed to convene a meeting of the Friends of the Co-Chairs prior to COP-MOP 4.

The meeting of the Friends of the Co-Chairs was convened in Bonn, Germany from 7 to 10 May 2008. The Friends continued to streamline the negotiating text and the outcomes were forwarded to COP-MOP 4 as document UNEP/CBD/BS/COP-MOP/4/11/Add.1.

COP-MOP 4 considered the final report of the Working Group and noted with appreciation the work undertaken by the Working Group over the course of its four years of negotiations. The Parties adopted the text from the meeting of the Friends of the Co-Chairs as the basis for work during COP-MOP 4 and established a contact group to continue the negotiations.

The contact group made significant progress in particular as regards to the legal nature of the rules and procedures on liability and redress.

In its decision BS-IV/12, COP-MOP adopted the negotiating text as revised by the contact group (see the annex to the decision) as the basis for further work. In addition, the Parties agreed to establish a Group of the Friends of the Co-Chairs to continue the process.

The fourth meeting of the Ad Hoc Working Group on Liability and Redress was held from 22-26 October 2007 in Montreal, Canada. At this meeting, the Working Group streamlined the operational texts on approaches and options identified pertaining to liability and redress in the context of Article 27 of the Biosafety Protocol. The blueprint considered at the last meeting of the Working Group was also revised to reflect the changes agreed by the Working Group to the form and contents of some of the elements that were under consideration. The revised blueprint is attached to the report of the meeting as Annex I.

The Working Group requested the Co-Chairs to do further streamlining on certain sections of the working document, attached to the report of the meeting as Annex II, and to produce a revised working draft for consideration by the Working Group at its fifth meeting. The report of the Working Group is contained in document UNEP/CBD/BS/WG-L&R/4/3.

The third meeting of the Ad Hoc Group on Liability and Redress took place from 19-23 February 2007 in Montreal, Canada. At this meeting, the Working Group considered, among other things, a blueprint for a COP-MOP decision on international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms. This is contained in annex I to the report of the meeting, document UNEP/CBD/BS/WG-L&R/3/3.

During this meeting, the Working Group discussed a synthesis of proposed operational texts on approaches, options and issues identified (sections IV to XI) pertaining to liability and redress in the context of Art. 27 of the Biosafety Protocol. Several representatives made further submissions of operational texts. The proposed texts were integrated into the working draft which is contained in annex II of the report of the meeting.

The second meeting of the Working Group on Liability and Redress was held from 20-24 February 2006 in Montreal, Canada. At this meeting, the Working Group developed an indicative list of criteria for the assessment of the effectiveness of any rules and procedures referred to in Article 27 of the Protocol. These are contained in annex I to document UNEP/CBD/BS/COP-MOP/3/10.

The Working Group also considered a synthesis of views and proposed text on the approaches, options and issues from the annex to the report of the first meeting of the Working Group. In particular, the Working Group developed different options for operational text on scope, damage and causation. The outcome of these deliberations is contained in annex to document UNEP/CBD/BS/COP-MOP/3/10.

In its decision BS-III/12, COP-MOP 3 welcomed the progress made by the Working Group to date and agreed that three five-day meetings of the Working Group should be convened before the next COP-MOP in order to enable the Working Group to complete its work in accordance with the indicative work plan in the annex to decision BS-I/8, i.e. by 2007.

The first meeting of the Ad Hoc Group on Liability and Redress took place from 25 to 27 May 2005 in Montreal, Canada back-to-back with the COP-MOP 2. In order to undertake preparatory work for this meeting, the Executive Secretary convened a meeting of Technical Group of Experts on Liability and Redress, which took place from 18 to 20 October 2004 in Montreal.

Intergovernmental Committee for the Cartagena Protocol on Biosafety

Prior to the entry into force of the Protocol, an interim governing body, the Intergovernmental Committee for the Cartagena Protocol on Biosafety (ICCP), was established by the Conference of the Parties to the Convention on Biological Diversity (decision EM-I/3).

At its third meeting, the ICCP considered a synthesis report prepared by the Secretariat of the information provided by Parties, Governments and relevant international organizations. It further considered a compilation of views on the term of reference of an expert group for COP-MOP 1 and a renewed invitation of views to the Secretariat on elements of the terms of reference for such a group in its recommendation 3/1.

Liability and redress was considered at the second meeting of the ICCP, which developed, in recommendation 2/1, recommendations to be forwarded to the first COP-MOP 1. ICCP-2 was required to elaborate “a draft recommendation on the process for elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms, including, among other things: “Review of existing relevant instruments"; and “Identification of elements for liability and redress.” ICCP-2 requested Parties, Governments and relevant international organizations to provide the Secretariat with information on measures and agreements in this field to be considered at the first meeting of COP-MOP. It further recommended a preparation of a term of reference for a possible working group on liability and redress for COP-MOP 1.

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