* This text was reproduced and reformatted from the text available at the United Nations Treaty Collection website (visited Mar. 1, 2011) http://treaties.un.org/doc/source/signature/2011/Ch-XXVII-8-c.pdf.

1 Nagoya-Kuala Lumpur Supplementary Protocol, Oct. 15, 2010, Decision BS-V/11, available at http://bch.cbd.int/protocol/NKL_decision.shtml [hereinafter Supplementary Protocol].

2 Concerning the choice of naming the protocol after Malaysia’s capital and a major Japanese city, Mr. Ahmed Djoghlaf, Executive Secretary of the Convention on Biological Diversity commented “The unprecedented naming of the new treaty after two cities located in the North and the South sends a clear and strong political message that addressing the challenges facing us today requires a new North South partnership and cooperation and calls for a new way of doing business.” Press Release, Secretariat of the Convention on Biological Diversity, UN Env’t Programme, The Nagoya–Kuala Lumpur Protocol on Liability and Redress for Damage Resulting from Living Modified Organisms Born in Nagoya (Oct. 12, 2010), available at http://www.cbd.int/doc/press/2010/pr-2010-10-12-nklpen.pdf.

3 The Cartagena Protocol on Biosafety to the Convention on Biological Diversity broadly defines the term “Living modified organism” as “any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology.” See Cartagena Protocol on Biosafety to the Convention on Biological Diversity 3(g), Jan. 29, 2000, 39 I.L.M. 1027. “Living organism” include “any biological entity capable of replicating genetic material.” Id. art 3(h). Modern biotechnology refers to “in vitro nucleic acid techniques . . . [and] fusion of cells beyond the taxonomic family that overcome natural physiological reproductive or recombination barriers and that are not techniques used in traditional breeding and selection.” Id. art. 3(i).

4 Id. Currently 160 states are parties to the protocol. Notable nonparties include United States, Canada, Russia, Australia, and South Korea. Under Article 27, parties agreed to “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 the ongoing processes in international law on these matters.” Id. art. 27.

5 Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M. 874.

6 The first COP/MOP for the Cartagena Protocol was held in Kuala Lumpur in February 2004.

7 Conference of the Parties to the Convention on Biological Diversity Serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, 5th mtg., Nagoya, Japan, Oct. 11-15, 2010, Rep. of the Fifth Meeting of the Conference of the Parties to the Convention on Biological Diversity Serving as the Meeting of the Parties to the Cartagena Protocol on Biosafety, ¶ 133, U.N. Doc. UNEP/CBD/BS/COP-MOP/5/17 (Dec. 14, 2010), available at http://www.cbd.int/doc/meetings/bs/mop-05/official/mop-05-17-en.pdf [hereinafter Report] (“It was noted that it had emerged during the negotiations of the Supplementary Protocol that Parties to the Protocol hold different understandings of the application of Article 27 of the Protocol to processed materials that are of living modified organism-origin. One such understanding is that Parties may apply the Supplementary Protocol to damage caused by such processed materials, provided that a causal link is established between the damage and the living modified organism in question.”).

8 Supplementary Protocol, supra note 1, art. 10.

9 Id. art. 2(2)(b). There is no single definition for what constitutes a “significant” adverse effect. Rather, Parties are expected to rely on an array of factors, including: whether the change is long-term or permanent (i.e. cannot be redressed within a reasonable period of time by natural recovery); whether there are certain types of qualitative or quantitative changes; whether there is interference with the delivery of ecosystem goods and services; and whether there are negative impacts on human health. Id. art. 2(3).

10 Report, supra note 7, ¶ 23, Annex. Some of the damage scenarios contemplated by the negotiating parties included: an intentional transboundary movement that takes place from Party A to Party B with the consent of Party B for the purpose of a field trial or for commercial growing of LMO crops in Party B causing damage through, for example, contamination of organic crops in Party B; an unintentional transboundary movement from LMO grower in Party A to Party B that causes damage in Party B; an intentional transboundary movement that takes place from Party A to Party B with the consent of Party B for the purpose of testing a LMO virus in a laboratory; an accidental release of LMOs while they are passing through a transit Party in connection with a transboundary movement from Party A to Party B; or an intentional transboundary movement that takes place from Party A to Party B with the consent of Party B for the purpose of placing products on the market or food aid which causes damage in Party B.

11 International Convention on Civil Liability for Oil Pollution Damage, Nov. 29, 1969, 973 U.N.T.S. 3.

12 Thus, the market distributor, the scientific developer, and the transporter of the LMO are within the meaning of the term “owner.”

13 Supplementary Protocol, supra note 1, art. 4. For the purposes of assessing liability, it does not matter whether the LMO has been intentionally introduced, accidental released, or even illegally traded. Where damage is identified, operators must immediately inform the “competent authority” (an administrative agency vested with authority by each State), evaluate the extent of the damage, and implement “response measures.” Id. art. 5(1). Concurrently, States, through their designated “competent authority,” must identify the “operator” causing the damage, evaluate damage, and determine which “response measures” must be implemented. Id. art. 5(2). Where an “operator” fails to act, the “competent authority” may be empowered to implement “response measures” to redress the damages.

14 Id. art. 2(2)(d).

15 Id. art. 2(2)(d)(ii)(b).

16 Id. art. 5(6).

17 Id. art. 12(1).

18 Id. art. 12(3).

19 In her contribution to the report, Jimena Nieto, as Co-Chair of the Group of Friends on Liability and Redress, commented that future meetings could resume discussion of these draft guidelines. See Report, supra note 7, ¶ 129.

20 Supplementary Protocol, supra note 1, art. 19.

21 Id. art. 15.

22 Id. art. 17.

23 Id. art. 18.