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While the objectives of the CBD also include the conservation of biological diversity and the sustainable use of its components, the issues of biotechnology and access to genetic resources were at the heart of the negotiating process.247 In outline the CBD represents a compromise whereby the developing countries with the highest levels of biodiversity agreed to grant access to their genetic resources and to conserve that biodiversity in return for a share of the benefits. A key concern of the developing countries of the South was to stop what was perceived the misappropriation of genetic resources and associated traditional knowledge by companies from the industrialised countries of the North, a process commonly known as ‘bio-piracy’.248 In other words benefit sharing is a fundamental component of the access regime. In terms of understanding the CBD, the starting point is the recognition that as States have sovereign rights over their natural resources, national governments also have the authority to determine access to their genetic resources in accordance with the applicable national legislation. Such access must be on mutually agreed terms and subject to the prior informed consent (PIC) of the State providing access in accordance with its laws and procedures. Moreover, States must ‘endeavor’ to create conditions to facilitate access to genetic resources for environmentally sound uses by other parties.249 In return, however, each contracting party to the CBD must endeavor to ensure the participation in scientific research of the State providing the resources and must take legislative, administrative or policy measures with the aim of sharing in a fair and equitable manner the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the State that provided those resources. Moreover article 19, entitled ‘handling of biotechnology and the handling of its benefits’, requires each contracting party to take legislative, administrative or policy measures to provide for the effective participation in biotechnological research activities of the countries that provide the genetic resources and to promote priority access on a fair and equitable basis to the results and benefits arising from biotechnologies based on genetic resources provided by those countries, especially developing countries.250 Such access must be on mutually agreed terms. While these provisions established basic principles for access and benefit sharing they provided little operational guidance. In 2002 the non-binding Bonn Guidelines were adopted by the sixth Conference of the Parties of the CBD to guide both users and providers of genetic resources in the implementation of the ABS provisions of the CBD. The guidelines also provided an indicative list of clauses to be included in mutually agreed terms, and possible monetary and non-monetary benefits. However although these voluntary guidelines were comprehensive, they were not considered to be very effective. Consequently a decision was taken that the topic of ABS needed to be addressed through the development of a legally binding protocol to the CBD. After eight years of negotiations the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising 247 Both terms are specifically defined in article XX of the CBD: biotechnology is defined to mean ‘any technological application that uses biological systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use’ while genetic resources are defined to mean ‘genetic material of actual or potential value’. 248 Chiarolla, C., Lapeyre, R., Pirard, R. Biodiversity conservation: How can the regulation of bioprospecting under the Nagoya Protocol make a difference? (2013) Studies N°06/13, IDDRI, Paris, France. 249 Article 15. 250 The issue of traditional knowledge associated with genetic resources and the rights of communities associated with such knowledge is also an important aspect of ABS but of less relevance to marine biotechnology. Study in support of Impact Assessment work on Blue Biotechnology 193

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