**5. International obligations and examples of domestic regulations: How they address sustainable development in aquaculture**

As we have seen in section two to four, the biotechnological developments open for benefits, but do also represent new challenges with regard to how they affect economic, social and environmental conditions. This section describes how these activities are sought regulated at the international and domestic arenas in order to enhance sustainability in the aquaculture sector. The section provides an overview of two different sets of legal provisions; the first bulk is rather voluminous and is aimed at access and benefit sharing legislation and hence, only indirectly dealing with the issue of sustainable development. The second is much less developed at the international and national arenas but these legal acts and instruments are more directly dealing with sustainable development in aquaculture. Both aspects are relevant to the Convention on Biological Diversity (CBD). At its second meeting (November 1995, Jakarta, Indonesia), the Conference of the Parties (COP) to the CBD agreed on a programme of action called the "Jakarta Mandate on Marine and Coastal Biological Diversity," which led to the creation of a work programme in this area.

The Convention on Biological Diversity has three interrelated objectives: Conservation and sustainable use of biodiversity, and access and equitable sharing of benefits from use of genetic resources. The scope of the CBD covers conservation and sustainable use of wild species and improved breeding stocks, as well as equitable sharing of benefits derived from the use of the world's genetic resources. This issue has been subject to controversial negotiations over the years since the establishment of the CBD. Negotiations recently resulted in a Protocol on Access and Benefit Sharing at the 10th Conference of the Parties to the CBD in Nagoya, October 2010.

The World Trade Organization (WTO) establishes global standards for harmonisation of intellectual property rights and the World Intellectual Property Organization has as its mandate to strive towards cooperation and harmonisation of IPR in all member countries. Harmonized IPR regulations target all technological fields similarly, including biotechnology and when biological material forms part of the invention. The tension between the overlapping objectives of the various international treaties is a controversial north-south issue.

Two changes in patent law have made the patent system controversial: First that patents are granted on various forms of biological material; and second that patents are granted to essentially basic research, increasing the commercial aspects of research. These tendencies raise questions about whether patents contribute to innovation or not. Also the link between exclusive rights and access rules is problematic, as very limited amount of benefits arising from utilization of genetic resources have been shared with providers. The CBD seeks to balance expanding patent regimes by establishing a compromise between access to technology and access to the input factors in biotechnology – genetic resources (Koester, 1997; Rosendal, 2000). This interaction between different international objectives has caused North-South conflicts over access to seeds and medicinal plants versus patented technology in the agriculture and medicinal sectors. This is different for aquaculture and animal husbandry where breeding material has usually not moved from south to north.

Access to genetic resources, conservation, equitable sharing of benefits, and IPR systems to boost innovation – are all internationally agreed objectives – but they are not necessarily mutually compatible (Rosendal, 2006). Conservation is basically a prerequisite for all the other objectives, as acknowledged in the three objectives of the CBD. The essence of the CBD is to tie the balance between ABS and IPR to that of conservation: Without access to the genetic resources, there can be little innovation. The CBD attempts to establish a system for innovation based on biodiversity to contribute in a fair manner to the conservation of the diversity. IPR legislation seeks its justification in increasing the incentive for innovation. There are, however, indications that broad patent claims have the potential also to hamper innovation by stifling access to technology and increase the transaction costs for other actors. Without innovation, there may be fewer benefits to share. Without benefit sharing from utilisation of genetic resources, there may be less will and ability to conserve biodiversity in developing countries – although this particular dimension has less immediate relevance in aquaculture compared to the agricultural and pharmaceutical sectors (FAO, 2009).

Turning to domestic norms and regulations and applying Norway as an example, the overall goals for aquaculture are linked to safeguard coastal settlements and increase value, sustainable management and innovation (White Paper, 2005:9, 136). Norway acknowledges responsibility for about one third of the world's remaining populations of wild salmon, as well as environmental responsibilities through Norwegian owned salmon farms including production in other countries (White Paper, 2009:142). This raises interesting questions about the relationship between Norwegian utilization of this resource and Norway's responsibility for managing the wild material according to the CBD.

At the domestic level, Norway has recently developed two relevant legal acts: The Nature Diversity Act of 2009 and the Act on Management of Wild Marine Resources of 6th June 2008. The Wild Marine Resources Act grants discretion for the government to establish a procedure of governmental permission before bioprospecting of wild marine genetic

mandate to strive towards cooperation and harmonisation of IPR in all member countries. Harmonized IPR regulations target all technological fields similarly, including biotechnology and when biological material forms part of the invention. The tension between the overlapping objectives of the various international treaties is a controversial

Two changes in patent law have made the patent system controversial: First that patents are granted on various forms of biological material; and second that patents are granted to essentially basic research, increasing the commercial aspects of research. These tendencies raise questions about whether patents contribute to innovation or not. Also the link between exclusive rights and access rules is problematic, as very limited amount of benefits arising from utilization of genetic resources have been shared with providers. The CBD seeks to balance expanding patent regimes by establishing a compromise between access to technology and access to the input factors in biotechnology – genetic resources (Koester, 1997; Rosendal, 2000). This interaction between different international objectives has caused North-South conflicts over access to seeds and medicinal plants versus patented technology in the agriculture and medicinal sectors. This is different for aquaculture and animal

husbandry where breeding material has usually not moved from south to north.

Access to genetic resources, conservation, equitable sharing of benefits, and IPR systems to boost innovation – are all internationally agreed objectives – but they are not necessarily mutually compatible (Rosendal, 2006). Conservation is basically a prerequisite for all the other objectives, as acknowledged in the three objectives of the CBD. The essence of the CBD is to tie the balance between ABS and IPR to that of conservation: Without access to the genetic resources, there can be little innovation. The CBD attempts to establish a system for innovation based on biodiversity to contribute in a fair manner to the conservation of the diversity. IPR legislation seeks its justification in increasing the incentive for innovation. There are, however, indications that broad patent claims have the potential also to hamper innovation by stifling access to technology and increase the transaction costs for other actors. Without innovation, there may be fewer benefits to share. Without benefit sharing from utilisation of genetic resources, there may be less will and ability to conserve biodiversity in developing countries – although this particular dimension has less immediate relevance in aquaculture compared to the agricultural and pharmaceutical

Turning to domestic norms and regulations and applying Norway as an example, the overall goals for aquaculture are linked to safeguard coastal settlements and increase value, sustainable management and innovation (White Paper, 2005:9, 136). Norway acknowledges responsibility for about one third of the world's remaining populations of wild salmon, as well as environmental responsibilities through Norwegian owned salmon farms including production in other countries (White Paper, 2009:142). This raises interesting questions about the relationship between Norwegian utilization of this resource and Norway's

At the domestic level, Norway has recently developed two relevant legal acts: The Nature Diversity Act of 2009 and the Act on Management of Wild Marine Resources of 6th June 2008. The Wild Marine Resources Act grants discretion for the government to establish a procedure of governmental permission before bioprospecting of wild marine genetic

responsibility for managing the wild material according to the CBD.

north-south issue.

sectors (FAO, 2009).

resources and is hence of less immediate relevance for export from breeding programmes. The Nature Diversity Act establishes genetic material as a commons resource that should remain a common property resource in Norway, and it also gives the Ministry the discretion to require permits for accessing genetic resources. Also the Marine Resources Act states that marine resources are a common resource. Both Acts require the respective ministries to supplement the legislation with detailed administrative regulations for access to genetic resources, but several challenges remain in developing these regulations. One is the relationship between access to the resources and the right to use it for a patented invention. Export of fingerlings and breeding material will invariably include the genetic material – and may hence require special protection in order to secure the interests of the exporter to maintain these resources as a commons.

Let us now turn to instruments that are more directly trying to tackle environmental concerns in aquaculture. Most central of these is the emerging Aquaculture Stewardship Council (ASC), which is expected to be in operation by 2011 as the world's leading certification and labelling programme for responsibly farmed seafood. The ASC is the outcome of the Aquaculture Dialogues and it will be responsible for working with independent, third party entities to certify farms that are in compliance with the standards for responsible aquaculture, which is created by the Dialogues. These standards are designed to minimize the key negative environmental and social impacts related to 12 aquaculture species. Similar to those of the Forest Stewardship and Marine Stewardship Councils, these standards prescribe quantitative performance levels that farmers must reach to become certified. More than 2,000 aquaculture producers, conservationists, scientists and others are involved in the process, which is coordinated by World Wildlife Fund (WWF). Along with the Dutch Sustainable Trade Initiative (IDH), the WWF also help fund the development of the ASC, which will be a non-profit organization.
