Negotiation history of the Supplementary Protocol

Liability and redress for damage resulting from the transboundary movements of living modified organisms was one of the most controversial issues during the negotiations of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity. Some were in favour of rules on liability and redress being developed and included in the Protocol while others were opposed to the idea of having any such provision in the Protocol. Some argued that even if there was consensus to have substantive rules on liability and redress in the Protocol, there was not enough time to elaborate such rules, which were believed to be highly complex and sensitive to several Governments. As the negotiations on the Protocol entered the final phase, negotiators realized that there was a lack of both consensus and sufficient time to deal with any contents of possible rules on liability and redress. It was, therefore, finally accepted to continue the debate in a more deliberate manner after the adoption and entry into force of the Protocol.

Accordingly, the Biosafety Protocol was adopted in January 2000. It contains a provision committing the Conference of the Parties serving as the meeting of the Parties to the Protocol (COP-MOP, the governing body of the Protocol) to adopt, at its first meeting, a process for the elaboration of liability and redress rules. That commitment was reflected in Article 27 of the Protocol which states as follows: “The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first meeting, adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms, analysing and taking due account of ongoing processes in international law on these matters, and shall endeavour to complete this process within four years.”

The Intergovernmental Committee on the Cartagena Protocol on Biosafety, an interim arrangement established following the adoption of the Protocol to oversee preparations for the entry into force of the Protocol, carried out extensive work on a number of items, including liability and redress in the context of Article 27 of the Protocol. The Biosafety Protocol entered into force on 11 September 2003. Soon after, in February 2004, the first meeting of the COP-MOP was held. The meeting decided to establish, on the basis of the work and recommendations of the Intergovernmental Committee, an Open-ended Ad Hoc Working Group of Legal and Technical Experts on Liability and Redress to carry out the process pursuant to Article 27 of the Protocol.

The Working Group met five times between 2005 and 2008. The result of the five meetings of the Working Group supplemented by the work of a small group that met just before COP-MOP 4 was submitted to the fourth meeting of the Parties. Negotiations also continued in a contact group setting during COP-MOP 4. All these deliberations advanced the negotiations well. Nevertheless, they were not sufficient to resolve all the outstanding issues and to lead the process to finalization in 2008. Consequently, COP-MOP 4 adopted a decision 3 in which Parties agreed to establish a Group of the Friends of the Co-Chairs of the former Working Group to continue the negotiations.

The Group of Friends of the Co-Chairs met four times between 2008 and 2010. It finally agreed to the text of the Nagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety and submitted its report, including the text and a draft decision on 11 October 2010 for the consideration and adoption of the fifth meeting of the COP-MOP in Nagoya, Japan. The Supplementary Protocol was adopted on 15 October 2010. The decision that adopted the Supplementary Protocol, i.e. decision BS-V/11, calls upon Parties to the Biosafety Protocol to sign the Supplementary Protocol at their earliest opportunity from 7 March 2011 to 6 March 2012. Parties to the Biosafety Protocol are also called upon to deposit their instruments of ratification, acceptance or approval or instruments of accession, as appropriate, as soon as possible.

A more detailed description of the negotiating history of the Supplementary Protocol is available here.

Timeline of the negotiation of the Nagoya - Kuala Lumpur Supplementary Protocol

Other relevant biosafety documents are available in the sections Meetings of the COP-MOP and Publications