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International Waters: Discus, Wipo and Access to Genetic Resources

Posted: April 17, 2014, 9:45 a.m. EDT

By John Dawes

Regular readers of this column know that the road to ratification and implementation of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation is bumpy. Everyone seems to agree that some type of undertaking to recompense countries of origin for the use of their genetic resources (including ornamental fish and aquatic plants and invertebrates) and traditional knowledge is desirable, but deep differences remain regarding the mechanisms required, the scope of the legal requirements of the required undertakings and a host of other factors.

With the addition of three new ratifying countries at the end of January 2014 (Benin, Burkina Faso and Myanmar), the total rises to 29, which is still 21 short of the minimum 50 required before the protocol can be implemented. This means that 63 of the 92 countries that have already signed the protocol have yet to ratify it. Among the latest three to ratify, only one is of some relevance to the ornamental aquatic sector, Myanmar, home to some beautiful fish such as the banded gourami (Colisa fasciata) and the thick-lipped gourami (C. labiosa). Yet its level of exports is so low that they don’t even feature in the Food and Agriculture Organisation of the United Nations (FAO) global statistics for ornamental fish imports/exports at any stage from 1976 to 2012.

Several high-profile pronouncements over recent months include one from the United Nations Secretary-General, Ban Ki-moon, who wrote to all heads of state/government urging ratification at the earliest opportunity. The UN General Assembly also highlighted the significance of the protocol last October and "invited parties to the Convention (i.e., Convention on Biological Diversity [CBD] members) to ratify or accede to the Nagoya Protocol so as to ensure its early entry into force and its implementation.”

banded gourami
The banded gourami (Colisa fasciata) is one of a relatively few ornamental fish currently available from Myanmar, one of the latest countries to ratify the Nagoya Protocol. John Dawes

In January 2014, the Indian Minister of Environment and Forests issued a joint letter with the CBD executive secretary expressing the hope that countries could "finalize their internal processes toward the ratification or accession of the Nagoya Protocol as soon as possible but no later than July 7, 2014.”

There is therefore considerable pressure to get countries to ratify the protocol. Interestingly, it might also be possible to interpret the repeated official pronouncements as a sign of concern that time is running out and that the number of countries that have ratified the protocol to date is still 21 short of the target.

Despite this apparent uncertainty, the CBD is continuing with preparations for the time when the protocol enters into force. The latest move in this direction is the launch of a website dedicated to the Access and Benefit-Sharing Clearing-House (ABS-CH).

At the time of writing, the new website was undergoing testing. Nonetheless, we know that the site is designed to allow tracking of the use of genetic resources in order to ensure access and benefit-sharing of those resources. The site was presented on Feb. 6 at a side event associated with the meeting of the UN World Intellectual Property Organization (WIPO) that was being held at the time.

The aim of the website is to monitor the utilization of genetic resources "to enhance legal certainty and transparency.” This should be possible because countries will have an obligation to provide permits when granting access to genetic resources (GR) and these permits will be communicated to the ABS-CH, whereupon an international certificate of compliance will be issued. Countries also will be required "to gather information from GR users, such as relevant original source and utilization of GRs, at certain checkpoints and then transmit this information to the ABS-CH.”

Exactly how this will be expected to work in connection with ornamental organisms and aquatic plants is not at all clear at this stage, but one assumes that our sector will, at some stage, have to follow some guidelines in one way or another. It would not appear reasonable, for example, to even begin to attempt to carry out any of the above-mentioned tracking in retrospect. Quite simply, it wouldn’t work.

How, for instance, do breeders of, say, discus in the many countries in which they are currently being bred track the origins of their fish? And how do the countries of origin compile the documentation that the ABS-CH would require, even if these requirements were to be made clear, which, as can be seen from the above quote, is not the case at the moment?

Further, discus originate in several South American countries, thus making unequivocal identification of the source of most cultivated varieties extremely difficult, or impossible, especially where varieties and species have been cross-bred over many generations.

If the system were to be introduced, it might (and I stress might) be possible for, say, Brazil, Colombia or Peru to be able to issue the ABS-CH permits for stocks of wild-caught Symphysodon aequifasciatus originating in their respective countries. Because this species has been introduced into Guyana, Suriname and the Philippines, then, presumably, these countries could also issue such permits, or would it not be legal for them to do so because their stocks (whose actual status is unknown) are not native but introduced?

The situation regarding S. discus is less complicated in a sense, because it only occurs naturally in one country: Brazil. However, it has been introduced into the Philippines, where its status is unknown, and into the U.S., where it’s probably not established. Because the other discus known to date, S. aequifasciata haraldi and S. a. axelrodi, are now regarded as S. aequifasciatus, and because S. discus willischwartzi is now regarded as S. discus, the same criteria would apply. The latest discus species, S. tarzoo, is restricted to Brazil, so it would be easier to issue permits for exports of wild-caught fish as they would all come from just one country, and the species has not yet been introduced anywhere else.

Yet even if it were feasible or possible for such permits to be issued, how do the countries of origin gather information from GR users (i.e., their clients) "at certain checkpoints, and then transmit this information to the ABS-CH”? And if everything is to proceed, are we running the risk of disappearing under a mountain of bureaucracy that will cripple the industry sooner or later?

Today’s international ornamental aquatic community is already laboring under an ever-increasing load of legal requirements, many (but by no means all) of which are perfectly logical and necessary. Therefore, would strict compliance to the protocol be one step too far for an industry that is miniscule when compared to those, such as the pharmaceuticals industry, that are the prime focus of the protocol?

Then there are the difficulties that the aforementioned WIPO has with the concept of benefit-sharing. One of several major stumbling blocks for the delegates at the Feb. 3-7, 2014, meeting relates to the mandatory disclosure of the origin of genetic resources.

While developing countries deem this to be essential in order to prevent biopiracy, some developed countries claim that disclosure will disincentivize innovation and be burdensome to comply with. Indeed, the level of disagreement at the February WIPO meeting was such that it could only result in a draft text that "still contains many brackets on a range of important subjects.” To appreciate the extent to which these brackets, i.e., uncertainties and diversity of opinion, are distributed throughout the document, go to: /redirect.aspx?

If the WIPO is having this much difficulty with benefit-sharing and access to genetic resources, it would not seem unreasonable to assume that the already-bumpy road that I referred to in my opening paragraph is going to remain such as the envisaged date for all ratifications to be in place (October 2014) looms even closer.



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