At the Convention on Biological Diversity, Fifth Meeting of the Parties to the Cartagena Protocol on Biosafety held at the Nagoya Conference Center, agreement was reached on 15 October 2010 on the Supplementary Protocol that stipulates the framework for liability and redress in the event of loss or damage caused by GM crops. Until now there has been no internationally agreed framework or treaty for assessing liability or claiming compensation for losses caused by cross-fertilization and so on with GM crops.

Two issues made formation of the agreement extremely difficult. The first was that the conclusion concerning financial guarantees was postponed and the second was that agreement was reached when the words �eand the products thereof�f was deleted from the text concerning �eLiving Modified Organism and the products thereof�f.

The protocol, as with the Kyoto Protocol, takes the name of the city where it was established, but this time the role played by Malaysia was considered to have been significant and so the protocol was given the name �gNagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress�h (NKL Supplementary Protocol). The protocol will enter into force when it has been ratified by 40 or more countries. (More below)

The Tenth Conference of the Parties to the Convention on Biological Diversity (COP10) with adoption of the �eNagoya Protocol�f and the �eAichi Target�f – the Strategic Plan of the Convention on Biological Diversity. The two important issues at COP10 were firstly the issue of �eaccess and benefit sharing�f (ABS) concerning access to and the sharing of profits from genetic resources, and the setting of international targets for the protection of biodiversity. The discussions were difficult and even as the COP10 closing ceremony was beginning on evening of 29 October 2010 it was not at all certain that agreement would be reached. In the end, after prolonged discussion that lasted into the early hours of 30 October, success in reaching agreement on each of the main themes resulted in the ABS issue being settled with the adoption of the Nagoya Protocol, and the Aichi Target adopted as the targets for the protection of biodiversity. In the background to the agreements being reached was the large sum of money for assistance pledged by Japan and the advanced nations. It is probably not terribly unfair to say that the advanced nations won the agreement with the promise of cash.

As mentioned in the article at the top of this page, agreement was reached on the �gNagoya – Kuala Lumpur Supplementary Protocol on Liability and Redress�h (NKL Supplementary Protocol) at MOP5. The Cartagena Protocol was adopted in 2000 and entered into force in 2003. In the process of the adoption of the Cartagena Protocol, what remained was the issue of �eliability and redress,�f agreed upon during this MOP5, that had been postponed due to a conflict of interests between mainly GM crop exporting countries and importing countries over the relative weights of liability and redress. The majority of exporting countries who wish to avoid liability are advanced industrial countries and in contrast the majority of importing countries who are demanding strict liability are developing countries.

Originally, this should have been agreed on at MOP4 in Bonn, Germany, but it was held over and since that time moves towards forging an agreement at MOP5 began. Over the two-year period there have been four meetings of the working group known as the �gMeetings of the Friends of the Co-Chairs on Liability and Redress Under the Biosafety Protocol,�h and the final meeting continued on and on until the morning of the opening of MOP5.

It is an important achievement that the liability and redress system agreed upon is not a guideline, but has been finalized as a legally binding �esupplementary protocol.�f However, the legally binding nature of the supplementary protocol has been deeply reduced by the fact that the response measures to address damage can be decided by each country in their domestic law, and it is up to each country to decide how to apply civil liability rules and procedures.

The issues remaining just before the beginning of MOP5 concerned financial guarantees and the products of living modified organisms (LMOs). Financial guarantees presupposes cases when losses or damage caused by a GM crop are large and the perpetrator is a small- or medium-sized operator which does not have the ability to carry out restorations or pay compensations. This is a mechanism for a backup in terms of insurance or a fund to ensure that the victim does not end up suffering without any recourse to legal action for compensation and so on. However, advanced countries were strongly opposed to this on the grounds that it would lead, for example, to higher prices for GM crops.

In the end, at the Meetings of the Friends of the Co-Chairs, since there was little possibility that the confrontation over this issue could be resolved, it was considered that if the discussions remained on the same path the supplementary protocol would not be adopted. It was agreed that the discussions be shelved while clearly stating that parties shall have the right to bring claims.

The other issue remaining was whether or not to include not only LMOs but also products derived from LMOs such as tofu and so on. The GM crop exporting countries mainly put up a strong resistance against this notion since it would widen the scope of things that could cause losses or damage. In the end, in the Meetings of the Friends of the Co-Chairs, text suggesting that parties may apply the supplementary protocol to damage caused by such processed materials, provided that a causal link between the damage and the LMO can be established. Having agreed on that, the reference to �eproducts thereof�f was deleted from the text.

This is how, after long discussions, the NKL Supplementary Protocol was finally agreed upon, albeit with a number of issues still awaiting final resolution.