The Need for an International Legal Concept of Fair and Equitable Benefit Sharing

Abstract

Fair and equitable benefit-sharing is a diffuse legal phenomenon in international law that has elicited little investigation with regard to its nature, extent and implications. It has been mostly studied as the cornerstone of the international legal regime on bioprospecting (research and innovation based on genetic resources). 1 But, under the radar, a growing number of international legal materials refer to "benefit-sharing" with regard to natural resource use (extractive activities, 2 forest 3 and water 4 management, tourism, 5 the use of marine resources, 6 land use and food production), 7 environmental protection (biodiversity conservation 8 and the fight against climate change 9 ), and the use of knowledge. 10 Concrete benefits to be shared have been identified as both monetary and non-monetary ones, such as revenue, information, 1 Such an "international regime" has been identified as comprising: Convention on Biological Diversity (CBD), the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR), and the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization (CBD Decision X/1 (2010), preambular para 6). Specialist legal scholarship is abundant: eg,

$$\hbox {CO}_2$$ CO 2 -intensive power generation and REDD-based emission offsets with a benefit-sharing mechanism

“…Proof Firstly, by the condition of the lemma E(x * 1 ( p)) ≥ E, meaning that x * 1 ( p) ∈ X 3 (27). Secondly, (25) is equivalent to (7) and, hence, solution to Problem 3 coincides with the solution to Problem 1: x * 3 = x * 1 ( p).…”

“…The benefit-sharing scenarios in which certain shares of the project's revenues are earmarked for the local government and injected back into the regional economy are considered in [10]. The benefit-sharing concept is also relevant in the international law context [27].…”

Linking Small-Scale Fisheries to International Obligations on Marine Technology Transfer

“…The following sections will explore international obligations on technology transfer under UNCLOS and international biodiversity law, as well as the guidance provided by the Intergovernmental Oceanographic Commission's Criteria and Guidelines on the Transfer of Marine Technology (the IOC Criteria and Guidelines) 21 and the Guidelines on Small-Scale Fisheries of the Food and Agriculture Organization of the UN (FAO), with a view to better understanding the reasons for the widely acknowledged lack of implementation of international technology transfer obligations [52, paras 57-58, 53, p. 653]. They will also show how developments related to fair and equitable benefit-sharing from the use of genetic resources provide practical insights into how to implement technology transfer obligations on the basis of partnerships [54], which may be of more general relevance, including in the context of ongoing negotiations of a new international legally binding instrument on marine biodiversity in areas beyond national jurisdiction.…”

Benefit-Sharing Arrangements between Oil Companies and Indigenous People in Russian Northern Regions

“…Benefit-sharing represents an obligation of the industry to return part of the income generated through the resource extraction activity back to the community and indigenous peoples in a monetary or non-monetary form [5]. "Fair and equitable benefit-sharing" is a legal phenomenon to which several international conventions refer, e.g., on biodiversity, international human rights, law of the sea, and the human right to science [6,7]. Although ILO Convention 169 does not directly use benefit-sharing terminology, experts are widely exploring its principles [7].…”

“…"Fair and equitable benefit-sharing" is a legal phenomenon to which several international conventions refer, e.g., on biodiversity, international human rights, law of the sea, and the human right to science [6,7]. Although ILO Convention 169 does not directly use benefit-sharing terminology, experts are widely exploring its principles [7]. This paper builds on the benefit-sharing concept and looks at equitable benefit-sharing arrangements as an important prerequisite for economic, environmental, and social sustainability of energy production in Northern Russia.…”