The Nagoya Kuala-Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety
The Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety was adopted on 15th October 2010 in Nagoya, Japan during the Fifth Conference of the Parties Serving as the Meeting of the Parties in Nagoya, Japan through decision BS-V/11. The Supplementary Protocol was opened for signature by the Parties to the Cartagena Protocol from the 7th March 2011 to 6th March 2012. In line with the Cartagena Protocol, the objective of the Supplementary Protocol is to contribute to the conservation and sustainable use of biological diversity, taking also into account risks to human health. The Supplementary Protocol seeks to do this by providing international rules and procedures in the field of liability and redress relating to living modified organisms.
The scope of the Supplementary Protocol covers damage resulting from transboundary movement of LMOs including LMOs intended for:
- Contained use
- Intentional introduction into the environment
- Direct use as food, feed or processing
- Unintentional transboundary movement, and
- Illegal transboundary movement.
The Supplementary protocol does not allow for retrospective application. It will only apply for damage that occurs after it enters into force. Another requirement is that there must be a causal link between the LMO and the damage. In the Supplementary Protocol, damage is defined as “adverse effects on the conservation and sustainable use of biological diversity, taking into account risks to human health”.
The main requirement for Parties to the Supplementary Protocol is to provide response measures (i.e. reasonable actions to minimize, contain, mitigate or otherwise avoid damage and restore biological diversity) where damage resulting from transboundary movement of LMOs has occurred.
Parties are required to domesticate the provisions of the Supplementary Protocol through domestic law. With reference to response measures, Parties are required to ensure that competent authorities fulfil their requirements as follows:
- Competent National Authority: The competent authority is required to
- Identify the operator who is responsible for the damage
- Evaluate the extent of the damage and,
- Determine the appropriate response measures with justification for them.
- The operator, defined as any person in direct or indirect control of the LMO. Party states have the liberty to define this further in their national law. In the event of damage, the operator is required to:
- Immediately inform the Competent Authority.
- Evaluate the damage, and, take appropriate response measures.
Where there is likelihood that damage will occur if timely action is not taken, the operator is required to take appropriate response measures.
Swaziland has not as yet acceded to the Supplementary Protocol but processes towards this are in progress.