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from their Utilization to the Convention on Biological Diversity’ (the ‘Nagoya Protocol’) was adopted on 29 October 2010. The Nagoya Protocol opened for signature in February 2011 and will enter into force 90 days after the date of deposit of the fiftieth instrument of ratification. To date there have been 28 ratifications. Although the EU and the Member States signed the protocol they have yet to ratify it. Nevertheless the intention is that this will happen shortly. Before looking in more detail at the Nagoya Protocol, however, it is first necessary to consider the scope of application of the CBD and the regime that it provides for in the terms of the sea and marine genetic resources. Article 4 of the CBD provides that the convention applies as regards the ‘components of biological diversity’, which term although not defined is broad enough to include genetic material, in areas within the limits of national jurisdiction. It goes on to provide, however, that the CBD also applies in the case of processes and activities carried out under the jurisdiction or control of a Contracting Party both within and beyond the limits of national jurisdiction. Moreover, article 22, which is concerned with the relationship between the convention and other international instruments, explicitly provides that the CBD is to be implemented with respect to the marine environment ‘consistently with the rights and obligations of States under the law of the sea’. To understand the meaning of these provisions it is therefore necessary to turn next to the law of the sea. The law of the sea The law of the sea is the branch of international law that is concerned with all uses and resources of the sea. The cornerstone of the law of the sea is the 1982 United Nations Convention on the Law of the Sea (‘UNCLOS’)251 and its two implementing agreements: the Part XI Deep Sea Mining Agreement252 and the UN Fish Stocks Agreement.253 UNCLOS entered into force in November 1994 and the EU and all of the Member States are party to it. The over-arching objective of UNCLOS is to establish a universally accepted, just and equitable legal order - or ‘Constitution’254 - for the oceans that lessens the risk of international conflict and enhances peace and stability in the international community.255 The development of UNCLOS required a balancing exercise between the competing interests and capacities of States. As with the development of the CBD, the negotiation of UNCLOS took place against competing claims from socalled developed and developing countries both seeking to defend their interests. A major point of contention concerned the rights of States over the mineral resources of the ocean sea bed. However the existence of marine genetic resources there and their possible economic value was unknown at the time. 256 This explains why the issue of marine genetic resources is not expressly addressed in UNCLOS. 251 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982. In force: 16 November 1994, 1833 United Nations Treaty Series 396; <www.un.org/Depts/los>. 252 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982New York, 28 July 1994. In force 28 July 1996, 33 International Legal Materials 1309 (1994); <www.un.org/Depts/los>. 253 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks New York, 4 August 1995. In force: 11 December 2001, 2167 United Nations Treaty Series 3; <www.un.org/Depts/los>. 254 Remarks by Tommy Koh, Chair of the Third United Nations Conference on the Law of the Sea (UNCLOS III). 255 See the fifth preambular paragraph UNCLOS. 256 Bonfanti, A. & Trevisnaut, S. Intellectual Property Rights Beyond National Jurisdiction: Outlining a Regime for Patenting Products Based on Marine Genetic Resources of the Deep-Sea Bed and High Seas Draft paper presented at the Third Annual Meeting of the Society for Environmental Law and Economics Amsterdam, June 24-25, 2011 at page 3 194 Study in support of Impact Assessment work on Blue Biotechnology

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