OUVRAGE : E. Morgera, Fair and Equitable Benefit-sharing in International Law

Elisa MORGERA

Fair and equitable benefit-sharing is a diffuse legal phenomenon in international law. The continued proliferation of benefit-sharing clauses can be explained by their appeal as an optimistic frame in addressing sustainability and equity concerns related to bio-based innovation, the use of natural resources, environmental protection, and knowledge creation. In principle, fair and equitable benefit-sharing serves to recognize, encourage, and incentivise sustainable human relationships with the environment by focusing on equity issues arising from the most intractable challenges of our time, such as loss of biodiversity, climate change, poverty, and global epidemics. Empirical evidence, however, indicates that, in practice, benefit-sharing rarely achieves its fairness and equity objectives, and ends up entrenching or worsening inequitable relationships with little to no benefit for the environment.

Instead of focusing on fair and equitable benefit-sharing in sub-specialist areas of international law in isolation, Elisa Morgera assesses the phenomenon from a general international law perspective and through comparison-across international environmental law, international human rights law, international health law, and the law of the sea. Strengthened by insights from local-level case studies in different regions and sectors, this book looks toward overcoming the limitations inherent in individual international regimes and addressing the shortcomings in benefit-sharing implementation. Morgera's topical and comprehensive analysis reveals opportunities to advance fairness and equity in benefit-sharing through a mutually supportive interpretation of international biodiversity law and international human rights law, as well as opportunities to contribute to future research in areas such as international health law, international law on outer space, and international economic law.

 

TABLE OF CONTENTS 

Contents
Table of Cases
Table of Treaties and International Materials
List of Abbreviations 

AN INTERNATIONAL LAW PHENOMENON

 

1. Introduction
2. An Initial Overview of the Emergence of Fair and Equitable Benefit- Sharing in International Law

2.1 When Did Fair and Equitable Benefit- Sharing Emerge in International Law?
2.2 Some Preliminary Distinctions
2.3 Why Has Fair and Equitable Benefit- Sharing Emerged in International Law?

3. What is Fair and Equitable Benefit- Sharing?

3.1 Sharing
3.2 Fairness and Equity
3.3 Benefits
3.4 Beneficiaries

4. Aims and Approach to the Study of Fair and Equitable Benefit- Sharing

4.1 Mutually Supportive Interpretation of International Biodiversity and Human Rights Law
4.2 Incompletely Theorized Agreements
4.3 Global Law
4.4 Equity and Environmental Justice

5. Structure of this Book 

1. INTER- STATE BENEFIT- SHARING

FROM ACCESS TO GENETIC RESOURCES

 

1. Introduction
2. Justice Dimensions and the Need for International Cooperation on Genetic Resources
3. Nagoya Protocol

3.1 Justice Dimensions from an International Law Perspective
3.2 Missing the Contextual Justice Dimension?
3.3 Benefit- Sharing as Equity Infra Legem
3.4 Benefit- Sharing as Equity Praeter Legem
3.5 Benefit- Sharing as Equity Contra Legem

4. Differences and Common Challenges in Other ABS Regimes

4.1 International Plant Treaty
4.2 Pandemic Influenza Preparedness Framework
4.3 BBNJ Agreement
4.4 Preliminary Considerations on Multilateral Benefit- Sharing

5. Digital Sequence Information

5.1 Justice Dimensions of DSI
5.2 Reconsidering a Multilateral Approach under the CBD
5.3 Taking the Issue from the Side under the International Plant Treaty
5.4 Specifically Including DSI in the Scope of the BBNJ Agreement

6. Conclusions: Iterative Learning and Regime Interaction 

2. INTER- STATE BENEFIT- SHARING AS SCIENTIFIC

AND TECHNOLOGICAL COOPERATION

 

1. Introduction
2. The Human Right to Science

2.1 Information Sharing and Scientific Cooperation as Benefit- Sharing
2.2 Technology Transfer as Benefit- Sharing

3. The Law of the Sea

3.1 The Duty to Cooperate
3.2 Multilateral Information Sharing
3.3 Scientific Cooperation for Environmental Protection

4. BBNJ Agreement

4.1 Why is Ocean Knowledge Co- production Central to the BBNJ Agreement?
4.2 The Advances of the BBNJ Agreement
4.3 BBNJ Institutions
4.4 Relevance of the Other Provisions in the BBNJ Agreement

5. Another Example: The International Climate Change Regime
6. Conclusions 

3. INTRA- STATE BENEFIT- SHARING: STATE OBLIGATIONS

TOWARDS INDIGENOUS PEOPLES 

1. Introduction
2. Indigenous Peoples’ Territories and Natural Resources
3. The Extent of Cross- Fertilization

3.1 The Perspective of International Human Rights Law
3.2 Incompletely Theorized Aspects and Contributions under International Human Rights Law
3.3 The Perspective of International Biodiversity Law

4. Consolidating a Mutually Supportive Interpretation of Fair and Equitable Benefit- Sharing
5. Further Advancing a Mutually Supportive Interpretation of Fair and Equitable Benefit- Sharing

5.1 Procedural Dimensions
5.2 Substantive Dimensions
5.3 Benefit- Sharing and Impact Assessment
5.4 Benefit- Sharing and Free Prior Informed Consent
5.5 Benefit- Sharing and Compensation

6. Moving from Safeguarding to Fully Realizing Indigenous Peoples’ Human Rights through Benefit- Sharing
7. Conclusions 

4. INTRA- STATE AND TRANSNATIONAL BENEFIT- SHARING

WITH LOCAL KNOWLEDGE HOLDERS

1. Introduction
2. Intra- State Benefit- Sharing: Local Communities, Peasants, and Small- Scale Fishers

2.1 Beneficiaries and Justice Dimensions
2.2 Security of Tenure
2.3 Comparative Reflections on Benefit- Sharing

3. Intra- Community Benefit- Sharing and Women’s Human Rights
4. Transnational Benefit- Sharing from the Use of Traditional Knowledge

4.1 Land- Based Knowledge
4.2 Small- Scale Fishers’ Knowledge
4.3 Indigenous and Local Knowledge in Bio- Based Innovation
4.4 Indigenous and Local Knowledge at the International Science- Policy Interface

5. Fair and Equitable Benefit- Sharing with Local Knowledge Holders for Transformative Change 

5. TRANSNATIONAL DIMENSIONS OF INTRA- STATE BENEFIT- SHARING:

BUSINESS RESPONSIBILITY TO RESPECT INDIGENOUS PEOPLES’ HUMAN RIGHTS 

 

1. Introduction
2. Business Due Diligence and International Law
3. UN Framework and Guiding Principles on Business and Human Rights

3.1 Business Responsibility to Respect Indigenous Peoples’Human Rights
3.2 Practice of the UN Special Rapporteur on Indigenous Peoples’ Rights

4. UN Global Compact
5. The OECD Guidelines on Multinational Enterprises

5.1 Business Responsibility to Respect Indigenous Peoples’Human Rights
5.2 Operationalization

6. The Performance Standards of the International Finance Corporation

6.1 Introduction to the IFC and its Performance Standards
6.2 Business Responsibility to Respect Indigenous Peoples’Human Rights
6.3 Operationalization

7. Business- Community Agreements

8. CONCLUSIONS

 

Conclusions

1. Introduction
2. Key Findings
3. Legal Status
4. Research Agenda

Selected Bibliography
Index 

Elisa MORGERA, Fair and Equitable Benefit-sharing in International Law, Oxford, Oxford University Press, 2024 (304 pp.)