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Access to marine genetic material As already noted, the starting point for Blue Biotechnology is the acquisition of genetic material from marine genetic resources (which may include organisms, genes and gene products). In terms of international law, as these are marine resources, this issue is subject both to the law of the sea, the branch of international law that is concerned with all uses and resources of the sea, and to a more recently developed body of international law that specifically regulates access to genetic resources and the sharing of resulting benefits. The process of searching for and acquiring genetic material for biotechnology purposes is commonly referred to as ‘bio-prospecting’. However while this expression is widely used such usage is not consistent. At one end of the scale the expression is used in a manner not dis-similar to, say gold prospecting or uranium prospecting.241 For example, a note prepared by the Convention on Biological Diversity Secretariat defines bioprospecting as “the process of gathering information from the biosphere on the molecular composition of genetic resources for the development of new commercial products.”242 At the other end of the scale it is used to include a much broader process involving research, development, manufacturing and marketing of products derived from genetic resources.243 The key point to note is that there is no internationally agreed definition of the term ‘bioprospecting’. The next question is whether or not this matters. In a sense it does not in that, as will be seen, a relatively comprehensive legal framework now exists at the international level to regulate this topic. On the other hand, though, the term bioprospecting is one that is in relatively common use its ambiguities notwithstanding. The basic problem, as noted by Scovazzi, is that there is an ‘inextricable factual link between marine scientific research (either pure or applied) and bioprospecting. It is impossible to establish a clear-cut distinction between one activity and the other and between one purpose and the other. A research endeavour organized with the intent to increase human knowledge may well result in the discovery of commercially valuable information and vice versa’.244 As will be seen the tension between scientific research and commercial benefit sharing is at the heart of the challenge. The legal framework created by the Convention on Biological Diversity The issue of access to genetic resources was first systematically addressed at the level of international law by the Convention on Biological Diversity245 (CBD) which was adopted at the Earth Summit in Rio de Janeiro in June 1992 and entered into force just over one year later. There are 193 parties to the CBD including the EU and the Member States.246 241 Or, for that, matter for prospecting for minerals on the ocean floor, an issue that is regulated under the law of the sea. 242 (UNEP/CBD/SBSTTA/8/INF/3/Rev. 1, para. 68). Similarly, New Zealand’s Biodiversity Strategy defines bioprospecting as ‘the search among biological organisms for commercially valuable compounds, substances or genetic material’. 243 See or example the definition of bioprospecting in South Africa’s National Environmental Management: Biodiversity Act of 2004 as amended: “bioprospecting”, in relating to indigenous biological resources, means any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes(a) the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application; (b) the utilisation for purposes of such research or development of any information regarding any traditional uses of indigenous biological resources by indigenous communities; (c) research on, or the application, development or modification of, any such traditional uses, for commercial or industrial exploitation; or (d) the trading in and exporting of indigenous biological resources in order to develop and produce products, such as drugs, industrial enzymes, food flavours, fragrances, cosmetics, emulsifiers, oleoresins, colours, extracts and essential oils; 244 Scovazzi, T. ‘The Concept of Common Heritage of Mankind and the Genetic Resources of the Seabed beyond the Limits of National Jurisdiction’ Agenda Internacional Año XIV, N° 25, 2007, at page 18. 245 Convention on Biological Diversity, Nairobi, 22 May 1992. In force 29 December 1993, 31 International Legal Materials 822 (1992); <www.biodiv.org>. 246 See http://www.cbd.int/convention/parties/list/ accessed on 18-1-14. Andorra, the Holy See, South Sudan and the United States of America are not party to the CBD. 192 Study in support of Impact Assessment work on Blue Biotechnology

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