Core Obligations

Core obligations from section IV of the introductory note: https://bch.cbd.int/protocol/NKL_ratification.shtml

The Supplementary Protocol on Liability and Redress supports Parties in their efforts to address damage to biological diversity resulting from living modified organisms by providing some essential elements for developing domestic legislative, administrative or judicial rules or procedures relevant to liability and redress. The Supplementary Protocol requires Parties to provide, in their domestic law, for rules and procedures that address damage. This requirement does not necessarily entail the enactment of a new law. It can be fulfilled by applying existing domestic law where this already addresses the elements required under the Supplementary Protocol.

The central obligation of Parties to the Supplementary Protocol is to provide for response measures in the event of damage resulting from living modified organisms, or where there is sufficient likelihood that damage will result if timely response measures are not taken. To that end, Parties to the Supplementary Protocol have to:

1. Require that an operator, subject to any requirements of the competent authority, in the event of damage, must (i) immediately inform the competent authority; (ii) evaluate the damage; and (iii) take appropriate response measures.
2. Require that an operator take appropriate response measures where there is sufficient likelihood that damage will result if timely response measures are not taken.
3. Make sure that the competent authority (i) identifies the operator which has caused the damage; (ii) evaluates the damage; and (iii) determines which response measures should be taken by the operator.
4. Require that decisions by the competent authority for the operator to take response measures are reasoned, that remedies are available, including administrative or judicial review of such decisions.
5. Put in place a requirement whereby the competent authority itself may implement appropriate response measures, in particular in situations where the operator has failed to do so.
6. Provide the competent authority the right to recover, from the operator, costs and expenses incurred in relation to the implementation of the response measures.

To assist in interpreting and implementing these obligations, the Supplementary Protocol includes definitions of some key terms, in particular:

• “damage”, which is defined as an adverse effect on the conservation and sustainable use of biological diversity, taking also into account risks to human health, that is measurable or otherwise observable and significant. Criteria to determine whether the effect is significant are provided in the Supplementary Protocol.
• “operator”, which is defined in the Supplementary Protocol as any person in direct or indirect control of the living modified organism. The determination of who the specific operator might be in any given circumstance is left to domestic law.
• “response measures”, which are defined as reasonable actions to (i) prevent, minimize, contain, mitigate, or otherwise avoid damage, as appropriate; and (ii) restore biological diversity. The operator or the competent authority, as the case may be, is also expected to undertake actions following a specified order of preference as part of the response measures for the restoration of biological diversity.

Parties are furthermore required to continue to apply their existing general law on civil liability or to apply or develop and apply civil liability rules and procedures specifically for the purpose of providing adequate rules on civil liability for material or personal damage associated with the damage, as this is defined in the Supplementary Protocol.