Global, Regional and National Perspectives
- New Horizons in Environmental and Energy Law series
Edited by Nigel Bankes, Irene Dahl and David L. VanderZwaag
Chapter 4: The rising tide of access and benefit sharing in aquaculture
The exchange of genetic resources is becoming increasingly important in aquaculture because of the growing number of species being domesticated and the need for new genetic material to respond to the effects of climate change. The exchange of genetic resources in aquaculture is affected by a patchwork of international instruments. These instruments govern, to varying degrees, access to, and benefit sharing of, aquatic genetic resources that are located within national jurisdictions, in areas beyond national jurisdiction and in the Antarctic Treaty Area. The regimes in these three jurisdictional areas are evolving at different paces and are being pulled in different directions to suit the various sectors that use aquatic genetic resources. To strive towards the fair and equitable sharing of genetic resources, access and benefit-sharing (ABS) regimes will need to accommodate aquaculture’s special characteristics relating to its lag in domestication and research, the particular pattern of resource use and exchange, as well as the migratory nature of its biological resources. This chapter firstly outlines the emerging significance for ABS in aquaculture. It shows how the predominant legal approach to ABS regimes was largely designed to suit patterns of genetic resource exchange and conflict in other sectors such as agriculture. It then identifies the special characteristics of resource exchange in aquaculture that could be incorporated into evolving ABS regimes. This is followed by a discussion of the emerging practice of patenting aquatic genetic resource inventions for use in aquaculture and how the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) framework and patent laws interact with ABS regimes. The remainder of the chapter provides a descriptive overview of the main international instruments in three jurisdictional areas that regulate to varying degrees aquatic genetic resources for use in aquaculture. First the focus is on instruments within national jurisdictions including the UN Convention on Biological Diversity (CBD) and its Nagoya Protocol. This is followed by outlines of the obligations in areas beyond national jurisdiction under the UN Convention on the Law of the Sea (UNCLOS) and the framework under the Antarctic Treaty System in the Antarctic Treaty Area, which is managed separately from areas within and beyond national jurisdiction. Finally, the discussion briefly touches on obligations for scientific knowledge sharing that transcend the three jurisdictional areas under the UN International Covenant on Economic, Social and Cultural Rights (ICESCR). The chapter concludes that the equitable use and sharing of genetic resources in aquaculture will depend on an integrated approach to addressing important issues, including commercial use and research, derivatives, geographical origin, management of ex situ resources and balancing ‘legitimate’ interests within various ABS regimes.
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