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In response to concerns over these issues raised in international fora, as well as by a range of nongovernment organisations and researchers, in 2004 the United Nations General Assembly (UNGA) established the ‘Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Diversity Beyond Areas of National Jurisdiction’, commonly known as the ‘BBNJ Working Group’.277 Since then the BBNJ has held a series of meetings (in 2006, 2008, 2010, 2011, 2012 and 2013) during the course of which various options to fill the existing ‘normative gap’ have been discussed. A number of alternative proposals have been canvassed as to how this should be done in terms both of ABS and the protection of the marine environment. These include amending the CBD, the adoption of a further protocol on ABS in ABNJ under the auspices of the CBD, the adoption of a separate stand-alone agreement on biodiversity in ABNJ (with its own new international organization to be responsible for enforcement) and the negotiation and adoption of an additional implementing agreement (IA) on these topics under the framework of UNCLOS. Moreover in order to ensure progress it was agreed at the Rio+20 Summit that States would decide by the end of the 69th session of the UNGA (August 2015) whether or not to launch the negotiations for the conclusion of an UNCLOS IA. The EU has been heavily involved in this process since 2006 and was instrumental in building in 2011 a consensus within the BBNJ Working Group with the G77 group of developing countries and China that the issue of marine genetic resources in ABNJ should form part of a negotiating ‘package’ that would also address MPAs, EIA and capacity building/technology transfer. Nevertheless many questions remain not only as to whether an IA will be developed but also as to its content and the procedure whereby this may take place. And a key question in all of this concerns the issue of benefit sharing and in particular whether or not the benefits of marine genetic resources obtained from ABNJ should accrue (directly or indirectly) to the States concerned or to mankind as a whole. But what is really meant by benefit sharing? Benefit sharing As already noted, the rather vague provisions on ABS in the CBD have been supplemented by the more detailed arrangements contained in the Nagoya Protocol. The European Commission played an active role in the negotiation of the text in respect of matters falling within EU competence. The objective of the Nagoya Protocol, which applies only to genetic resources over which States exercise sovereign rights, is the fair and equitable sharing of the benefits arising from the utilization of genetic resources which expression is defined to mean the conducting of research and development of the ‘genetic and/or biochemical composition of genetic resources, including through the application of biotechnology’ as defined in the CBD. Article 5 re-emphasizes the fair and equitable sharing of the benefits arising out of the utilization of genetic resources as well as their subsequent application and commercialisation, while article 6 sets out the minimum requirements for access and PIC including making provision for a formal permit or equivalent confirming that PIC has been granted as well as setting out clear rules and procedures for requiring and establishing mutually agreed terms. Apart from canvassing the need for a global multilateral benefit-sharing mechanism relating to genetic resources that occur in transboundary situations or which it is not possible grant or obtain PIC278, the Nagoya Protocol also requires each contracting Party to establish a national focal point and national competent authority and also provides for the creation of an ABS ‘Clearing House’ and information centre. A key provision is article 15 which requires each contracting Party to take 277 The BBNJ was established pursuant to United Nations General Assembly Resolution 59/24 of 17 November 2004. 278 In other words such a protocol could conceivably apply to marine genetic resources obtained from ABNJ. Study in support of Impact Assessment work on Blue Biotechnology 201

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