New book assesses how international law is supporting (and how it can better support) equity and sustainability
Hub Director Elisa Morgera has published a new, open-access monograph ‘Fair and Equitable Benefit-sharing in International Law’ with Oxford University Press, assessing how and to what extent international law is supporting equity in environmental sustainability through the concept of fair and equitable benefit-sharing at the intersection of international environmental law, international human rights law, and the law of the sea. The book builds upon an earlier, 5-year research project BENELEX (funded by the European Research Council) and insights from One Ocean Hub on fair and equitable benefit-sharing.
The book addresses the overarching question: how can international law recognise, encourage, and protect 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? The concept of fair and equitable benefit-sharing clauses in international treaties and international guidance seeks to address this question. References to benefit-sharing have been proliferating, because of its 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. At least, this is the intention in principle; 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.
Strengthened by insights from local-level case studies in different regions and sectors (traditional pastoralism, mining on traditional lands, conservation, and small-scale fisheries) and first-hand insights from the author’s participation in multilateral negotiations, Morgera’s book 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. Based on original thinking grounded in evolutive and mutually supportive interpretation, the book suggests how to overcome the limitations inherent in individual international regimes and addressing the shortcomings in benefit-sharing implementation, by relying on the human right to a healthy environment, Indigenous peoples’ human rights, peasants’ human rights, women’s human rights and the human right to science, including from the perspective of business responsibility to respect human rights.
As a result, fair and equitable benefit-sharing is conceptualised by Morgera as a deeper form of cooperation – the concerted and dialogic process aimed at building partnerships in co-identifying and allocating economic, socio-cultural and environmental benefits among State and non-State actors, with an emphasis on the vulnerable and the potential to benefit a wider group than those actively or directly engaged in bio-based innovations, natural resource management, environmental protection, and use of knowledge.
The book concludes by developing the argument that fair and equitable benefit-sharing has emerged as a general principle of international law, thereby having implications for the exercise of States’ discretionary powers in the absence of a treaty basis on benefit-sharing and for international organisations, with a view to further clarifying the international duty to cooperate in the context of sustainable development.
Related SDGs:
