Sharing aquatic genetic resources across jurisdictions: playing ‘chicken’ in the sea
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International regimes regulating access and benefit sharing were originally designed to promote conservation and fairness objectives concerning the use of the world’s biological resources for their genetic material value. These regimes determine from whom permission is required to take the resources and who obtains the benefits of their use. They have evolved separate frameworks in three distinct jurisdictional areas—within national jurisdiction, beyond national jurisdiction and in the Antarctic Treaty Area. This article argues that if these regimes continue to evolve separately, there is a strong temptation for countries to play ‘chicken’ with biological resource governance through forum shopping or opting out of agreements that do not suit their political ends. Using game theory and a transgenic tilapia fish example incorporating genetic material from the three jurisdictional areas, it illustrates the legal and ethical dilemmas that can arise from the territorial (jurisdictional) approach to access and benefit sharing—to the detriment of fairness and conservation in tilapia’s countries of origin. Tilapias are known as the ‘chicken of the sea’ because they dominate global farmed production and developing countries depend on them as their primary source of protein, livelihoods and trade. This means there will be serious consequences if the regimes do not achieve their fairness and conservation objectives for sharing their genetic material. This article concludes that a purpose-driven cooperative governance approach can sidestep the game of chicken and promote fairer and more conservation focused outcomes than the current jurisdictional approach for the developing country providers of migratory aquatic resources.
KeywordsAccess and benefit sharing Aquatic genetic resources Tilapia aquaculture Technology transfer Convention on biological diversity Law of the sea
I thank Professor Charles Lawson for his comments on this article. I also thank Griffith University for funding the writing of this article.
Compliance with ethical standards
Conflict of interest
After researching and drafting this article, the WorldFish Center engaged the author to carry out a research consultancy on aquaculture. WorldFish is an aid and development organization based in Malaysia and was central to the dissemination of tilapia GIFT genetic resources mentioned in the article. The work in this article was not a result of (not funded by) the WorldFish consultancy.
- Ad Hoc Open-Ended Informal Working Group. (2015). Letter dated 13 February 2015 from the Co-Chairs of the Ad Hoc Open-Ended Informal Working Group to the President of the General Assembly. (69th sess, Agenda Item 74(a), UN Doc A/66/780, 13 February 2015).Google Scholar
- Antarctic Treaty, opened for signature Dec. 1, 1959, in force June 23, 1961, 402 U.N.T.S. 71 (‘Antarctic Treaty’) Art. VI.Google Scholar
- Antarctic Treaty Consultative Meeting—ATCM. (2009). A gap analysis of the antarctic treaty system regarding the management of biological prospecting (32nd mtg, Agenda Item 17, WP 26, April 2009).Google Scholar
- Antarctic Treaty Consultative Meeting—ATCM. (2008). An update on biological prospecting in Antarctica, including the development of the antarctic biological prospecting database (31st mtg, Agenda Item 17, WP 011, June 2008).Google Scholar
- Antarctic Treaty Consultative Meeting—ATCM. (2005). Decision 10, electronic information exchange system (28th mtg, Agenda Item 17, adopted 17 June 2005).Google Scholar
- Aoki, K., & Luvai, K. (2007). Reclaiming common heritage treatment in the international plant genetic resources regime complex. Michigan State Law Review, 35, 35–70.Google Scholar
- Attanasi, G., Gallego, A., Georgantzís, N., & Montesano, A. (2012). Environmental agreements as a Hawk-Dove game with confirmed proposals. Environmental Economics, 3(4), 35–42.Google Scholar
- Australian Law Reform Commission. (2004). Genes and ingenuity: Gene patenting and human health (Report No. 99, 2004).Google Scholar
- Bartley, D., et al. (2009). The use and exchange of aquatic genetic resources for food and agriculture (Background Study Paper No. 45, 2009).Google Scholar
- Bently, L., et al. (2010). Experts’ study on exclusions from patentable subject matter and exceptions and limitations to the rights (World Intellectual Property Organization Standing Committee on the Law of Patents, 15th sess, WIPO Doc SCP/15/3, 2 September 2010) annex 1 (‘Introduction’).Google Scholar
- Biber-Klemm, S., Davis, K., Gautier, L., Kiehn, M., & Martinex, S. (2015). Ex situ collections of plants and how they adjust to ABS conditions. In E. Kamau, G. Winter, & P.-T. Stoll (Eds.), Research and development on genetic resources: Public domain approaches in implementing the Nagoya protocol (pp. 207–225). London: Routledge.Google Scholar
- Convention on Biological Diversity, opened for signature June 5, 1992, in force Dec. 29, 1993, 1760 U.N.T.S. 79.Google Scholar
- Convention on the Conservation of Antarctic Marine Living Resources, opened for signature May 20, 1980, in force April 7, 1982, 1329 U.N.T.S. 47.Google Scholar
- El-Zaeem, S., & Assem, S. (2004). Application of biotechnology in fish breeding: production of highly immune genetically modified Nile tilapia, Oreochromis Niloticus with accelerated growth by direct injection of shark DNA into skeletal muscles. Egyptian Journal of Aquatic Biological and Fisheries, 8(3), 67–92.Google Scholar
- Food and Agriculture Organization of the United Nations. (2016). The state of world fisheries and aquaculture: Contributing to food security and nutrition for all. http://www.fao.org/3/a-i5555e.pdf. Accessed 24 May 2018.
- Food and Agriculture Organization of the United Nations. (2017). Oreochromis niloticus; Cultured aquatic species information programme. http://www.fao.org/fishery/culturedspecies/Oreochromis_niloticus/en. Accessed 24 May 2018.
- Frison, C., López, F., & Esquinas-Alcazar, J. (Eds.). (2012). Plant genetic resources and food security: Stakeholder perspectives on the international treaty on plant genetic resources for food and agriculture. London: Routledge.Google Scholar
- Glowka, L. (1994). A guide to the convention on biological diversity (Environmental Policy and Law Paper No. 30, International Union for the Conservation of Nature).Google Scholar
- Greiber, T., et al. (2011). Access and benefit sharing in relation to marine genetic resources from areas beyond national jurisdiction: A possible way forward (Study Paper, Federal Agency for Nature Conservation)Google Scholar
- Greiber, T., et al. (2012). An explanatory guide to the Nagoya protocol on access and benefit-sharing (Environmental Policy and Law Paper No. 83, International Union for Conservation of Nature).Google Scholar
- Gupta, M. V., & Acosta, B. O. (2004). From drawing board to dining table: the success story of the GIFT project. NAGA, WorldFish Center Quarterly, 27(3–4), 4–14.Google Scholar
- Humphries, F. (2015). Shellfish patents krill experimentation: Defences for sharing patented aquatic genetic materials in aquaculture. European Intellectual Property Review, 37, 210–224.Google Scholar
- Humphries, F. (2017b). A stewardship approach to legitimate interests in deep sea genetic resources for use in aquaculture. University of New South Wales Law Journal, 40(1), 27–56.Google Scholar
- Humphries, F. (2018). Banking on a patent solution for sharing ex situ genetic resources from Antarctic waters. In C. Lawson & A. Kamalesh (Eds.), Biodiversity, genetic resources and intellectual property: Developments in access and benefit sharing (pp. 59–94). London: Routledge.Google Scholar
- Intergovernmental Oceanographic Commission. (2003). 2003 Intergovernmental Oceanographic Commission criteria and guidelines on the transfer of marine technology. XXII session of the assembly of the Intergovernmental Oceanographic Commission. http://unesdoc.unesco.org/images/0013/001391/139193m.pdf. Accessed 24 May 2018.
- International Treaty on Plant Genetic Resources for Food and Agriculture, opened for signature Nov. 3, 2001, in force June 26, 2004, 2400 U.N.T.S. 303.Google Scholar
- Jabour-Green, J., & Nicol, D. (2003). Bioprospecting in areas outside national jurisdiction: Antarctica and the Southern Ocean. Melbourne Journal of International Law, 4, 76–111.Google Scholar
- Lee, J. K., Kim, Y. J., Park, K. S., Shin, S. C., Kim, H. J., Song, Y. H., et al. (2011). Molecular and comparative analyses of type IV antifreeze proteins (AFPIVs) from two Antarctic fishes, Pleuragramma antarcticum and Notothenia coriiceps. Comparative Biochemistry and Physiology Part B: Biochemistry and Molecular Biology, 159(4), 197–205.CrossRefGoogle Scholar
- Louafi, S., & Schloen, M. (2013). Practices of exchanging and utilizing genetic resources for food and agriculture and the access and benefit sharing regime. In E. C. Kamau & G. Winter (Eds.), Common pools of genetic resources: Equity and innovation in international biodiversity law (pp. 193–223). Abingdon, UK: Routledge.Google Scholar
- Marrakesh Agreement Establishing the World Trade Organization, opened for signature April 15, 1994, in force Jan. 1, 1995, 1869 U.N.T.S. 3 annex 1C (‘Agreement on Trade-Related Aspects of Intellectual Property Rights’).Google Scholar
- Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, opened for signature Oct. 29, 2010, in force Oct. 12, 2014  A.T.N.I.F. 3.Google Scholar
- Oberthür, S., & Rosendal, G. K. (2014). Global governance of genetic resources: Background and analytical framework. In S. Oberthür & G. K. Rosendal (Eds.), Global governance of genetic resources access and benefit sharing after the Nagoya Protocol (pp. 1–18). New York: Routledge.Google Scholar
- Protocol on Environmental Protection to the Antarctic Treaty, opened for signature Oct. 4, 1991, in force 1998, 30 I.L.M. 1455.Google Scholar
- Tayamen, M. M. (2004). Nationwide dissemination of GET-EXCEL tilapia in the Philippines. In R. Bolivar, G. Mair & K. Fitzsimmons (Eds.), 6th international symposium on tilapia in aquaculture (Vol. 6), ISTAGoogle Scholar
- UN Doc. (2016). Decision XIII/16 digital sequence information on genetic resources. Conference of the parties to the convention on biological diversity. 13th mtg, UN Doc CBD/COP/DEC/XIII/16, 16 December 2016.Google Scholar
- United Nations General Assembly. (2015). Development of an international legally-binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. GA Res 69/292, UN GAOR, 69th sess, 96th plen mtg, Agenda Item 74(a), Supp No 49, UN Doc A/RES/69/292, 6 July 2015, adopted 19 June 2015.Google Scholar
- United Nations General Assembly. (2017). Report of the Preparatory Committee established by General Assembly resolution 69/292: Development of an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Preparatory Committee, 4th sess, UN Doc A/AC.287/2017/PC.4/2, 31 July 2017.Google Scholar
- Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, in force Jan. 27, 1980, 1155 U.N.T.S. 331.Google Scholar
- World Health Assembly. (2011). Resolution 64.5 of 24 May 2011. pandemic influenza preparedness: Sharing of influenza viruses and access to vaccines and other benefits. Sixty-fourth World Health Assembly, WHA64/5, 2011. www.apps.who.int/gb/ebwha/pdf_files/WHA64/A64_R5-en.pdf. Accessed 29 September 2017.
- Wood, A., & Mayer, J. (2007). Changing the face of the waters: The promise and challenge of sustainable aquaculture. Washington, DC: World Bank.Google Scholar
- WTO Doc. (2011) Draft decision to enhance mutual supportiveness between the trips agreement and the convention on biological diversity (WTO document TN/C/W/59 of 19 April 2011).Google Scholar