September 2013, Volume 13, Issue 3, pp 271-290
Date: 01 Aug 2012
The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges
- Gurdial Singh Nijar
- … show all 1 hide
Rent the article at a discountRent now
* Final gross prices may vary according to local VAT.Get Access
The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress was finally adopted on 15 October 2010 at Nagoya, Japan. It was negotiated pursuant to a mandate established by the First Conference of the Parties serving as the Meeting of the Parties in 2004 under an enabling provision in the Cartagena Biosafety Protocol. The Supplementary Protocol seeks to deal with damage to biodiversity as well as ‘associated’ traditional material or personal damage. It delineates two pathways to dealing with such damage: the administrative approach that empowers a competent authority to deal with the matter administratively, without initial recourse to courts; and a civil liability approach that requires litigants to seek private law remedies through national legal systems. However, while the Supplementary Protocol has elaborate and comprehensive provisions implementing the administrative approach, it incorporates only a single article on civil liability which does little more than exhort parties to continue to apply their existing domestic law on the subject or establish rules to deal specifically with the matter. This was not the outcome anticipated when the negotiations started. It was the expectation, primarily of developing countries then, that the prospective protocol would deal essentially with civil liability and set out substantive and procedural rules on liability and redress. This article traces how and why all this came to pass. It also analyses the provisions, and the implications, relating to the administrative approach and the single enabling article on civil liability. It deals also with the challenges in implementing the administrative approach, novel to most countries. Finally, it examines the prospect for the emergence in the future of a more elaborate international civil liability regime.
Appleton, A., Ashton, M., Bisiaux, A., & Hajjar, R. (2008). Summary of the fifth meeting of the open-ended ad hoc working group on liability and redress in the context of the Cartagena Protocol on Biosafety, 12–19 March 2009. Earth Negotiations Bulletin 9:435 at 12.
Barboza, J. (2011). The environment, risk and liability in International law. Leiden: Martinus Nijhoff Publishers.
Cook, K. (2002). Liability: No liability, no protocol. In C. Bail, R. Falkner, & H. Marquad (Eds.), The Cartagena protocol on biosafety: Reconciling trade in biotechnology with environment and development (pp. 371–384). London: The Royal Institute of International Affairs, Earthscan.
Cullet, P. (2006). Liability and redress for modern biotechnology. In Yearbook of international environmental law (Vol. 15, pp. 165–195).
Jungcurt, S., & Schabus, N. (2010). Liability and redress in the context of the Cartagena Protocol on Biosafety. In Review of European community and International Environmental law (Vol. 19(2) , pp. 197–206).
Mackenzie, R., Burhenne-Guilmin, F., La Vina, A., & Werksman, J. (2003). An explanatory guide to the Cartagena Protocol on Biosafety, Switzerland, Gland and UK, Cambridge: IUCN—The World Conservation Union.
Morgera, E., & Tsioumani, E. (2011). Yesterday, Today, and Tomorrow: Looking Afresh at the Convention on Biological Diversity. In Yearbook of International environmental law. (Vol. 22). Nagoya-Kuala Lumpur supplementary protocol on liability and redress to the Cartagena protocol on biosafety. International Legal Materials (Vol. 50 , p. 105).
Nijar, G. S. (2000). Developing a liability and redress regime under the Cartagena protocol on biosafety, IATP, pp. 50–52.
Nijar, G. S., & Gan, P. F. (2012). Liability and redress under the Cartagena protocol on biosafety: A record of negotiations for developing International rules (Vol. 2). Kuala Lumpur: CEBLAW/NRE, Universiti Malaya.
Nijar, G. S., Lawson-Stopps, S., & Gan, P. F. (2008). Liability and redress under the Cartagena protocol on biosafety: A record of negotiations for developing International rules. Kuala Lumpur: CEBLAW/NRE, Universiti Malaya.
Secretariat of the Convention on Biological Diversity. (2003). The Cartagena protocol on biosafety: A record of the negotiations. Montreal: UNEP/Convention on Biological Diversity.
Secretariat of the Convention on Biological Diversity. (2004). Global biosafety: From concepts to action. Decisions from the first 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, Kuala Lumpur, Malaysia 23–27 February 2004., Montreal: Secretariat of the Convention on Biological Diversity, pp. 80–83. Also available at http://www.biodiv.org.
Telesetsky, A. (2011). The 2010 Nagoya-Kuala Lumpur supplementary protocol: A new treaty assigning transboundary liability and redress for biodiversity damage caused by genetically modified organisms, ASIL Insight, January 10, 2011, Vol. 14, Issue 41. http://Volumes/Macintosh%20HD/Users/richie/Dropbox/Work/%5B028%5D…%20Web%20Administration/emails/insights/insights110107_email.html. Accessed 1 Oct 2011.
- The Nagoya–Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety: An analysis and implementation challenges
International Environmental Agreements: Politics, Law and Economics
Volume 13, Issue 3 , pp 271-290
- Cover Date
- Print ISSN
- Online ISSN
- Springer Netherlands
- Additional Links
- Liability and redress
- Living modified organisms
- Transboundary movements
- Administrative approach
- Civil liability
- Industry Sectors
- Gurdial Singh Nijar (1) (2)
- Author Affiliations
- 1. Law Faculty, Universiti Malaya, 50603, Kuala Lumpur, Malaysia
- 2. Centre of Excellence for Biodiversity Law, Kuala Lumpur, Malaysia