TY - JOUR
AU - Perron-Welch,, Frederic
AB - Abstract This article addresses the benefit-sharing concept as a potential emerging principle in international sustainable development law. It reviews and studies how benefit sharing is treated in different international law regimens including the Convention on Biological Diversity and its Nagoya Protocol and other Rio Conventions, the International Treaty on Plant Genetic Resources for Food and Agriculture, Law of the Sea, selected regional agreements and ongoing international processes such as the negotiation of an international instrument for the conservation and sustainable use of biodiversity in areas beyond national jurisdiction (ABNJs). Finally some suggestions are provided for a future research agenda on this issue. The objective of this article is to provide an analysis of the benefit sharing concept in international sustainable development law and the most relevant international law instruments and processes in which benefit sharing has been addressed. I. Benefit-sharing for the sustainable management of natural resources for development A growing number of international legal materials refer to benefit-sharing with regard to natural resource use.1 It has been conceptualized as “the concerted and dialogic process aimed at building partnerships in identifying and allocating economic, socio-cultural and environmental benefits among state and non-state actors, with an emphasis on the vulnerable.”2 It can be argued that it is, in its normative core, a general principle of international law; the manifestation of consensus among developed and developing countries.3 Yet, it likely cannot be described as a specific, established principle of international law, and even less as customary international law.4 Its best known elaboration in the context of natural resources law is in biodiversity law, specifically in relation to the use of genetic resources. Its origins also come from the field of human rights law, primarily the right to self-determination, the right to development, the right to enjoy the benefits of scientific progress and technology, and the rights of indigenous peoples and local communities.5 The link between benefit sharing and sustainable development is made explicit in the preamble of the 2002 ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, which defines the objective of sustainable development as a comprehensive and integrated approach to economic, social and political processes, which aims at the sustainable use of natural resources of the Earth and the protection of the environment on which nature and human life as well as social and economic development depend and which seeks to realize the right of all human beings to an adequate living standard on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting there from, with due regard to the needs and interests of future generations.6 II. Contributions of international law and governance to benefit-sharing for the sustainable management of natural resources 1. Principle of permanent sovereignty over natural resources The principle that benefits from the use of natural resources should be shared is present in the earliest incarnations of the principle of permanent sovereignty over natural resources (PSNR), as first defined in the 1962 UN General Assembly Resolution on PSNR and which has evolved through normative resolutions originating from a variety of UN organs.7 The roots of the concept are linked to the strengthening of the (political and economic) sovereignty of newly-independent States, and the right of self-determination of peoples under colonial occupation and in non-self-governing territories.8 The principle has been advocated by developing countries to secure the benefits arising from the exploitation of natural resources for colonial peoples, and as a legal shield protecting newly-independent countries from infringements of their economic sovereignty.9 It embodies the right of States and peoples to dispose freely of their natural resources and natural wealth, but exists as a qualified concept encompassing duties as well as rights.10 In one of its quasi-law creating effects, the 1962 Resolution vests permanent sovereignty in both peoples and States, and attributes to both the duty to exercise their sovereignty in the interest of national development and for the well-being of the people.11 It also makes reference to other principles relevant to benefit-sharing that are now part of the canon of international law, namely that the exploration, development and disposition of natural resources and the foreign capital required for these purposes are in conformity with domestic laws on authorization, restriction or prohibition of such activities;12 that profits derived from the use of natural resources are shared in the proportions freely agreed upon by the investors and the recipient State;13 and that international development cooperation must be aimed at the independent national development of developing countries, based on respect for sovereignty over their national wealth and resources.14 Yet, the UN also concurrently expressed concern for the sustainable management of natural resources for development, recognizing “the extent to which the economic development of the developing countries may jeopardize their natural resources and flora and fauna, which in some cases may be irreplaceable if such development takes place without due attention to their conservation and restoration,”15 and recommending measures aimed at preserving, restoring, enriching and making rational use of natural resources and increasing productivity; observing international treaties on the preservation of flora and fauna; and, introducing effective domestic legislation aiming at eliminating the wasteful exploitation of flora and fauna.16 Shortly after the adoption of the 1962 Declaration, developing countries sought to build upon the principle as a means to foster their economic development and to redistribute wealth and power in their relations with the industrialized countries.17 The 1966 PSNR Resolution makes this evident, as it recognizes the right of all countries, and developing countries in particular, to have a greater share in the advantages and profits derived from natural resources on an equitable basis, with due regard for the development needs and objectives of the peoples concerned and to mutually acceptable contractual practices.18 The strength of the general principle is evident from its inclusion in the international human rights covenants on civil and political rights, and economic, social and cultural rights, which were adopted concurrently. Both indicate that all peoples may freely dispose of their natural wealth and resources based upon the principle of mutual benefit.19 A leading scholar argues that benefit-sharing subsequently developed from developments in international law under the umbrella of the debate on a New International Economic Order (NIEO), which has left its legacy in the global sustainable development agenda.20 According to the 1986 ILA Seoul Declaration, foundational principles of the NIEO include, among others, equity, solidarity, development assistance, the duty to co-operate for global development, permanent sovereignty over natural resources/economic activity/wealth, the right to development, substantive equality, and the right to benefit from science and technology.21 After debates on a NIEO, benefit-sharing made an appearance in several subsequent human rights instruments, such as the 1986 Declaration on the Right to Development, which indicates that States have the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free and meaningful participation in development and in the fair distribution of the benefits resulting therefrom.22 In the most recent UN declarations, the focus on PSNR has shifted to a greater focus on international co-operation for sustainable development.23 PSNR is now a source of international responsibilities requiring careful management and imposing accountability at the national and international levels, and taking into account international law on sustainable development and the rights of future generations.24 This is of pertinence to the discussion below, as the effective protection of biodiversity is possible only with international cooperation because many of the components of biodiversity, the threats to biodiversity and benefits therefrom have transboundary or global dimensions.25 2. Biological resources under national jurisdiction The most widely recognized application of benefit-sharing associated with natural resources is found in international biodiversity law, which builds on the principle of PSNR in its primary instruments: the 1992 Convention on Biological Diversity26 (CBD) and 2002 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization,27 and the 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Resulting from their Utilization (Nagoya Protocol on Access and Benefit Sharing (ABS)). The objectives of the CBD are the conservation of biodiversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (GR), including by appropriate access to GR and by appropriate transfer of relevant technologies, and by appropriate funding.28 The conservation of genetic diversity is aimed at preserving the total amount of genetic information of all living organisms, including wild as well as cultivated species.29 Its operational scope applies to biodiversity in areas of national jurisdiction,30 but the CBD also applies to “processes and activities, regardless of where their effects occur, carried out under [each Contracting Party’s] jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction”31 which arguably extends its scope to all biodiversity.32 It has been argued that the roots of ABS in the CBD can be traced to colonialism and efforts by colonial powers to gain control of trade over key commodities for their own benefit, and that part of the rationale behind benefit-sharing is to avoid the exploitation inherent in many forms of resource extraction with a North-South legacy, which has historically been associated with the unsustainable use of natural resources.33 Appropriation from the 1980s onward was largely done through the use of intellectual property rights (IPR) in the North. ABS was explicitly incorporated into the CBD due to the fact that many biodiversity hotspots with significant potential are located in developing countries. The scheme on benefit-sharing is firmly based upon the concept of sustainable development, as States must aim to find an equitable balance between the interests of the countries of origin and those of States that have the technical and technological means to use GR develop and use technologies stemming there from.34 The resulting approach allows States to control access by setting terms that allow them to profit from the potential value of their GR and biodiversity, creating an incentive to conserve and sustainably use the resources.35 ABS creates a new income opportunity for poor countries, which should place them in a better position to escape from poverty.36 The objectives of the CBD establish a clear link between the conservation and sustainable use of biodiversity and the sharing of benefits resulting from access. This linkage is affirmed in the objective of the Nagoya Protocol on ABS, which associates fair and equitable sharing of the benefits arising from the utilization of GR with the conservation of biodiversity and the sustainable use of its components, and its encouragement of users and providers to direct benefits arising from the utilization of GR towards the conservation of biodiversity and the sustainable use of its components.37 The CBD is one of the only conventions to define the sustainable use of a resource, defining it as “the use of components of biodiversity in a way and at a rate that does not lead to its long-term decline, thereby maintaining its potential to meet the needs and aspirations of present and future generations.”38 To clarify this definition, it also defines biodiversity39 and biological resources40 – which include genetic resources. Sustainable use focuses on the active management of biological resources, which provide an incentive for conservation by allowing for benefits from use that does not threaten a species or ecosystem.41 Including genetic and ecosystem diversity into the definition of biodiversity goes further than earlier treaties, which aim to protect enumerated species or areas from human threats and destruction or extinction.42 At its core, the CBD makes it clear that biodiversity is not a shared global resource, but rather that States have sovereign rights over their own biological resources,43 and the sovereign right to exploit their own resources pursuant to their own environmental policies.44 It is reinforced in Art. 15 which, recognizing the sovereign rights of States over their natural resources, provides that national governments have the authority to determine access to GR based on national legislation.45 This was a fundamental shift in international law, as genetic resources were formerly perceived as the common heritage of humanity.46 This shift is quite consequential, as most biological resources are found under the jurisdiction of States.47 Yet, the CBD also places limitations on the exercise of PSNR in ways that favour the sustainable management of natural resources for development. It establishes general measures that States must undertake for the conservation and sustainable use of biodiversity, namely the development of national strategies, plans or programmes (NBSAPs) for the conservation and sustainable use of biodiversity, or adapt for this purpose existing strategies, plans or programmes, and the integration of the conservation and sustainable use of biodiversity into relevant sectorial or cross-sectorial plans, programmes and policies.48 Limitations on PSNR that apply specifically to GR include Parties endeavouring to create conditions to facilitate access to GR for environmentally sound uses by other Parties and not to impose restrictions that run counter to the objectives of this CBD, access based on mutually agreed terms (MAT) and subject to the prior informed consent (PIC) of the providing Party, and the taking of legislative, administrative or policy measures with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of GR with the Party providing the GR upon MAT.49 With specific regard to the sustainable use of biological resources, Parties must integrate consideration of the conservation and sustainable use of biodiversity into national decision-making; adopt measures relating to the use of biological resources to avoid or minimize adverse impacts on biodiversity; protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements; support local populations to develop and implement remedial action in degraded areas where biodiversity has been reduced; and encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources.50 The Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity51 elaborate on these obligations in the context of adaptive management, interdisciplinary research, minimizing waste and environmental impact and optimizing benefits from uses, the needs of ILC and fair and equitable sharing of benefits, and the internalization of costs of management and conservation.52 In less stringent terms, the CBD also provides for an additional form of benefit-sharing relating to the conservation and sustainable use of biodiversity in recognition of the value of the traditional knowledge, innovations and practices (TKIP) on biological resources of indigenous and local communities (ILC) embodying traditional lifestyles and the desirability of sharing equitably benefits arising from the use of TKIP.53 These TKIP can provide a lead to GR with beneficial properties and can thus be linked to ABS. In consequence, the CBD requires each Party to, “as far as possible and as appropriate” and “subject to its national legislation” respect, preserve and maintain the TKIP of ILC embodying traditional lifestyles relevant for the conservation and sustainable use of biodiversity and promote their wider application with the approval and involvement of the holders of the TKIP, and encourage the equitable sharing of the benefits arising therefrom.54 The Nagoya Protocol on Access and Benefit-Sharing goes further and states that Parties shall take legislative, administrative or policy measures, as appropriate, in order that the benefits arising from the utilization of TK associated with GR are shared in a fair and equitable way with indigenous and local communities holding such knowledge.55 The Bonn Guidelines were adopted in order to clarify the benefit-sharing provisions found in the CBD in a voluntary manner. They first established the link between CBD Arts. 8(j) (TKIP), 10(c) (customary sustainable use), 15 (access to genetic resources), 16 (access to and transfer of technology) and 19 (handling of biotechnology and distribution of its benefits).56 Importantly, they provide guidance on the content of benefit-sharing agreements to assist in the development of MAT that ensure fair and equitable benefit-sharing.57 They indicate that MAT may cover the conditions, obligations, procedures, types, timing, distribution and mechanisms of benefits to be shared, which will vary depending on what is regarded as fair and equitable in the circumstances.58 Near-term, medium-term and long-term benefits should be considered, including up-front payments, milestone payments and royalties, with the time-frame of benefit-sharing clearly stipulated. The balance among near, medium and long-term benefits should be considered on a case-by-case basis.59 Benefits should be shared fairly and equitably with all those who have been identified as having contributed to the resource management, scientific and/or commercial process. The latter may include governmental, non-governmental or academic institutions and indigenous and local communities, and be directed in order to promote conservation and sustainable use of biodiversity.60 It is recommended that the mechanism for benefit-sharing vary depending upon the type of benefits, the specific conditions in the country and the stakeholders involved, and be flexible as it should be determined by the partners involved and will vary on a case-by-case basis.61 Mechanisms should include full cooperation in scientific research and technology development, as well as those that derive from commercial products including trust funds, joint ventures and licences with preferential terms.62 The World Summit on Sustainable Development in 2002 agreed to the establishment of an international regime to effectively promote and safeguard fair and equitable benefit-sharing. On 20 December 2002, Resolution 57-260 of the UN General Assembly invited the COP to take the necessary measures regarding the commitment established at the Summit to negotiate this regime.63 This international regime became the Nagoya Protocol.64 After six years of negotiations, the tenth COP adopted the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization.65 The Protocol provides a transparent legal framework for the effective implementation of its benefit-sharing objective. It covers genetic resources and TK associated with genetic resources, as well as the benefits arising from their utilization, by setting out core obligations for its contracting Parties in relation to access, benefit-sharing and compliance. The Protocol is based on the fundamental principles of access and benefit-sharing enshrined in the CBD. It supports the implementation of the third objective of the CBD by providing greater legal certainty and transparency for both providers and users of genetic resources. It helps to ensure benefit-sharing, in particular when genetic resources leave the providing country, and it establishes more predictable conditions for those wanting to access genetic resources. By enhancing legal certainty and promoting benefit-sharing, the Protocol encourages the advancement of research on genetic resources which could lead to new discoveries for the benefit of all. The Protocol creates incentives to conserve and sustainably use genetic resources, and thereby enhances the contribution of biodiversity to development and human well-being66. The Annex to the Nagoya Protocol demonstrates the potential breadth of benefit-sharing and indicates how it may contribute to sustainable natural resource management for development, which could be of relevance to interpreting benefit-sharing in a broader context.67 3. International Treaty on Plant Genetic Resources for Food and Agriculture The 2001 FAO International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has as its objective “the conservation and sustainable use of plant genetic resources for food and agriculture [PGRFA] and the fair and equitable sharing of the benefits arising out of their use, in harmony with the [CBD], for sustainable agriculture and food security.68 This objective is based on PSNR, as it builds on the pre-existing status of genetic resources under the CBD. The preamble notes that, by exercising their sovereign rights over PGRFA, States can mutually benefit from creating an effective multilateral system (MLS) for facilitated access to a negotiated selection of resources and for the fair and equitable sharing of the benefits arising from their use. In this sense, the ITPGRFA “seeks to promote agricultural sustainability within a global system that recognizes the permanent sovereignty and exclusive control of States over PGRFA within their own jurisdiction”69 and lays the foundation for the establishment of an “equitable food and agricultural system for future generations, through a broader-based multilateral system of facilitated access and benefit sharing of PGRFA, open to and including various different stakeholders.”70 Art. 6 creates basic obligations relating to sustainable use of PGRFA, namely that Parties develop and maintain appropriate policy and legal measures that promote the sustainable use of PGRFA. Art. 10 establishes the MLS, stating that Parties exercise their sovereign rights to establish a MLS that is efficient, effective, and transparent, both to facilitate access to PGRFA, and to share, in a fair and equitable way, the benefits arising from the utilization of PGRFA, on a complementary and mutually reinforcing basis.71 Although the ITPGRFA applies to PGRFA broadly, the MLS only covers access to the 64 food and forage crops listed in its Annex I, and strictly for the purposes of utilization and conservation for research, breeding and training for food and agriculture (other uses are subject to the CBD/Nagoya Protocol). Unlike the bilateral approach promoted by the CBD, the PGRFA are shared based on a standard material transfer agreement (SMTA) adopted by the Governing Body of the ITPGRFA,72 which includes the benefit-sharing provisions found in Art. 13. Facilitated access to PGRFA which are included in the MLS is recognized as a major benefit of the MLS, and agree that benefits accruing therefrom shall be shared fairly and equitably through the following mechanisms: exchange of information, access to and transfer of technology, capacity-building, and the sharing of the benefits arising from commercialization.73 This section of the ITPGRFA “seeks to redress some of the more obvious asymmetries between gene rich developing countries of the South and the gene hungry countries of the North with its inclusion of provisions relating to the sharing of monetary and other benefits arising from commercialization.”74 There remain some significant challenges in operationalization of the MLS, especially in terms of increasing non-voluntary monetary contributions.75 The ITPGRFA Preamble also recognizes benefit-sharing as a fundamental aspect of Farmers’ Rights, affirming that these are inherently based on “the past, present and future contributions of farmers in all regions of the world, particularly those in centres of origin and diversity, in conserving, improving and making available these [PGRFA]” and “that the rights recognized in this Treaty to save, use, exchange and sell farm-saved seed and other propagating material, and to participate in decision-making regarding, and in the fair and equitable sharing of the benefits arising from, the use of [PGRFA], are fundamental to the realization of Farmers’ Rights, as well as the promotion of Farmers’ Rights at national and international levels.” In a manner similar to the protection of the TKIP of ILC in the CBD, the ITPGRFA establishes that “In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers’ Rights, including: protection of traditional knowledge relevant to plant genetic resources for food [PGRFA], [and] the right to equitably participate in sharing benefits arising from the utilization of [PGRFA].”76 Unfortunately, much remains to be done in regards to the implementation of these rights.77 One main difference between the idea behind the CBD and the MLS is that benefit sharing under the ITPGRFA is linked to a specifically defined trigger point for when benefit sharing shall take place. Consequently, benefit sharing is detached from the individual access situation and provider. The Standard Material Transfer Agreement is the practical legal tool for all transfers of genetic material under the MLS. This enables rapid access as no negotiations are needed and provides standardized means by which countries can exercise their sovereign rights to a specific and limited selection of plant genetic resources for specific uses. It also implies a standardized approach to gaining prior informed consent and mutually agreed terms. Access is provided free of charge, and if a fee is charged, it shall not exceed the minimum cost involved (Art. 12.3.b). All available passport data and related information are to be provided together with the material (Art. 12.3.c). The ITPGRFA differs substantially from the CBD, as the treaty as a whole applies to one specific group of organisms - plant genetic resources for food and agriculture. Although the negotiation of the Nagoya Protocol took place under the framework of the Convention on Biological Diversity, it was clear at that time that several other international instruments or processes were (and still are) relevant for the issue of access and benefit-sharing. Since the Protocol in principle applies to all types of genetic resources, it must be recognized that provisions relevant to ABS (of a different nature) also exist in a range of international instruments and processes outside the CBD.78 Therefore, it was considered necessary to address the relationship of the Protocol with other relevant instruments and organizations related to its objective, content and mechanisms, including the International Treaty the only existing specialised instrument on ABS.79 Art. 4 of the NP deals with the relationships between the Protocol and other international instruments in general, including specialized instruments on ABS. Furthermore, it includes the work and practices of relevant international organizations. Some of the language of this Article comes directly from Art. 22 of the CBD. Nevertheless, the second part of the paragraph addresses an aspect not covered in CBD Art. 22, but found in other MEAs: the clarification that the paragraph is not intended to create a hierarchy between the Protocol and other instruments. In accordance with international law (the principle of pacta sunt servanda), a State is legally bound to comply with all the treaties to which it is a party. Some recent Multilateral Environmental Agreements (MEAs) contain a clause, sometimes referred to as a ‘saving clause’ in the preamble or in the operative text, stating the relationship between the instrument and other related instruments, in some cases specially those related to international commerce and trade such as the World Trade Organization (WTO). Art. 4 para. 1 of the NP is an example of this approach to international environmental law. When such a clause appears in the operative text of a treaty, it can indicate which treaty - the existing treaty or the new treaty – the Parties intended to make prevail in the case of a conflict. Art. 30(2) of the Vienna Convention on the Law of Treaties provides that “when a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of the other treaty prevail”. Furthermore, under the Vienna Convention later treaties between the same parties dealing with the same subject matter supersede the provisions of earlier treaties, unless wording expressing the contrary exists in the later treaty. Para. 2 reaffirms the right of Parties to develop and implement other relevant international agreements in general and, in particular, other specialized ABS agreements. It is important to note that the legal capacity of a Party to develop and implement any international instrument comes from international law directly (see Art. 6 of the Vienna Convention on the Law of Treaties). The provision therefore reiterates this principle. The possibility for the development and implementation of new specialized ABS agreements (ie, a sectorial approach) was supported by some countries. These countries suggested the option that the Nagoya Protocol could include a general provision recognizing existing or future specialized ABS sectorial approaches. However, at the same time, there was a concern that new international agreements and their implementation, especially new ABS sectorial agreements, may run counter the objectives of the CBD and the Nagoya Protocol in particular, thus creating a loophole and making it difficult to satisfy the demand for fair and equitable benefit-sharing. Therefore, Paragraph 2 contains a safeguard clause: Parties may negotiate and implement any new international agreement to the extent that these agreements are “supportive and do not run counter to the objectives of the Convention and this Protocol”. This qualification applies to both general international instruments and specialized ABS agreements. Para. 3 again includes the obligation of the Parties to implement the relevant international instruments and the Protocol in a mutually supportive manner. The term “mutually supportive” has taken a particular meaning in the trade and environment context and can be found in recent MEAs, such as the Cartagena Protocol on Biosafety. Specifically, para. 4 of the NP states: “This Protocol is the instrument for the implementation of the access and benefit-sharing provisions of the Convention. Where a specialized international access and benefit-sharing instrument applies that is consistent with, and does not run counter to the objectives of the Convention and this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument.” Said para. 4 clarifies that the Protocol is the instrument for implementing the CBD provisions on ABS. Whether it was recognized that other relevant instruments coexist along with the Protocol, the Protocol is considered the implementation mechanism of the CBD ABS provisions. 4. Convention for the Conservation of the Biodiversity and the Protection of Wilderness Areas in Central America The 1992 Convention for the Conservation of the Biodiversity and the Protection of Wilderness Areas in Central America80 contains several provisions relevant to benefit-sharing. First, its objective is to preserve the maximum possible biological, terrestrial and coastal-marine diversity of the Central American region for the benefit of present and future generations.81 Second, it recognizes that the value of the contribution of the biological resources and the maintenance of biodiversity to economic and social development must be recognized and reflected in the economic and financial arrangements between the countries of the region, and between these and others that cooperate in their conservation and use.82 Third, it indicates that knowledge of biodiversity and the efficient management of protected areas should be encouraged in the region, and that the benefits of R&D on bio-materials or the management of protected areas should be made available to society as a whole.83 Third, TKIP developed by native groups in the region that contribute to the conservation and use sustainable use of biological resources should be recognized and recovered.84 Fourth, it indicates that access to genetic material, substances, derivative products, related technology, and their conservation, is open, subject to the jurisdiction and control of the States through agreements mutually established with recognized organisms.85 Lastly, it promotes the elaboration of a national law for the conservation and sustainable use of the components of biodiversity.86 In 1998, the Central American Protocol on Access to Genetic and Biochemical Resources and Associated Traditional Knowledge was adopted to provide a basis for the harmonization of laws and standards related to access to genetic and biochemical resources.87 5. South African Development Community (SADC) Protocol on Forestry (Luanda Protocol) The 2002 South African Development Community (SADC) Protocol on Forestry (Luanda Protocol) establishes that “to achieve the objectives of this Protocol, State Parties shall co-operate by promoting respect for the rights of communities and facilitating their participation in forest policy development, planning, and management with particular attention to the need to protect traditional forest-related knowledge (TFRK) and to develop adequate mechanisms to ensure the equitable sharing of benefits derived from forest resources and traditional forest-related knowledge without prejudice to property rights.”88 A core principle of the Protocol is that “State Parties shall recognise that communities are entitled to effective involvement in the sustainable management of forests and forest resources on which they depend and to share equitably in the benefits arising from their use.”89 More substantively, Parties must recognize, respect and protect the rights of individuals and communities over their TFRK and their right to benefit from its utilization.90 Parties may, with consultation with local people and communities, record, preserve and protect TFRK and provide for equitable benefit-sharing from its utilization among those who hold it, and develop relevant standards, guidelines and other mechanisms where appropriate.91 Furthermore, Parties must adopt national policies and implement mechanisms to ensure that access to the forest GR is subject to PIC and MAT and equitable benefit-sharing from their use.92 They will also develop a regional approach and harmonised national legislation regulating access to, and the management, development and use of forest GR and for equitable benefit-sharing.93 6. Relevance of the Rio Conventions The 1992 United Nations Framework Convention on Climate Change (UNFCCC) recognizes the key role and importance in terrestrial ecosystems of sinks and reservoirs of greenhouse gases (GHG) and the sovereign right of States to exploit their own resources pursuant to their own environmental and developmental policies.94 Basic principles of the UNFCCC include the right to sustainable development, and the need for cooperation to promote a supportive and open international economic system that would lead to sustainable economic growth and development in all Parties.95 Parties commit to promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all GHG, including biomass and forests, as well as other terrestrial ecosystems.96 The recent 2015 Paris Agreement to the UNFCCC incorporates provisions that promote benefit-sharing for the sustainable management of biological resources for development. It states that Parties should take action to conserve and enhance, as appropriate, sinks and reservoirs of GHG, including forests, and encourages Parties to take action to implement and support, including through results-based payments: the existing framework for policy approaches and positive incentives for activities relating to reducing emissions from deforestation and forest degradation, and the role of conservation, sustainable management of forests and enhancement of forest carbon stocks in developing countries (REDD+); and, alternative policy approaches, such as joint mitigation and adaptation approaches for the integral and sustainable management of forests, while reaffirming the importance of incentivizing, as appropriate, non-carbon benefits associated with such approaches.97 The 1994 United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (UNCCD) notes in its preamble that “desertification is caused by complex interactions among physical, biological, political, social, cultural and economic factors” recognizes the sovereign right of States to exploit their own resources pursuant to their own environmental and developmental policies, and bears in mind the contribution that combating desertification can make to achieving the objectives of the UNFCCC, CBD and other related environmental conventions.98 In order to achieve the objective of the UNCCD to combat desertification and mitigate the effects of drought in countries experiencing serious drought and/or desertification, long-term integrated strategies will need to be adopted that focus simultaneously on improved productivity of land, and the rehabilitation, conservation and sustainable management of land and water resources, leading to improved living conditions, in particular at the community level.99 In addition to their general obligations, developed Parties commit to “promote and facilitate access by affected country Parties, particularly affected developing country Parties, to appropriate technology, knowledge and know-how.”100 Although much of the UNCCD addresses this issue, which could be considered a mode of benefit sharing, this brief will be restricted to benefit-sharing from the use of traditional knowledge, which contains language similar to the CBD. In the context of scientific and technological cooperation, specifically information collection analysis and exchange, UNCCD Parties shall “subject to their respective national legislation and/or policies, exchange information on local and traditional knowledge, ensuring adequate protection for it and providing appropriate return from the benefits derived from it, on an equitable basis and on [MAT], to the local populations concerned.”101 For R&D, Parties will support research activities that protect, integrate, enhance and validate TKIP, ensuring, subject to national law and/or policies, that the TKIP owners will directly benefit on an equitable basis and on [MAT] from any commercial utilization or technological development derived from that knowledge.102 In the context of transfer, acquisition, adaptation and development of technology, the Parties shall, according to their respective capabilities, and subject to their respective national legislation and/or policies, protect, promote and use in particular relevant traditional and local technology, knowledge, know-how and practices and undertake to ensure that such technology, knowledge, know-how and practices are adequately protected and that local populations benefit directly, on an equitable basis and as mutually agreed, from any commercial utilization of them or from any technological development derived therefrom.103 7. Rights of indigenous peoples The 1989 ILO Convention 169: Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169) indicates that indigenous/tribal peoples also have the right to participate in the use, management and conservation of natural resources pertaining to their lands and territories.104 Where States retain ownership of rights to natural resources pertaining to indigenous/tribal lands and territories, they must establish or maintain consultation procedures to determine the level of prejudice to indigenous/tribal interests before undertaking or permitting programmes for the exploration or exploitation of these resources, and wherever possible, the peoples concerned will participate in the benefits of such activities and receive compensation for damages which they may sustain.105 Art. 15 does not determine the precise scope of benefit-sharing, allowing for different interpretations in domestic legal systems and considerable scope for discretion in its implementation.106 Although the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP)107 and 2016 Organization of American States (OAS) American Declaration on the Rights of Indigenous Peoples108 also contain the right to participate in the management of natural resource use, and the right to redress, they do not make mention of the right to benefit from the use of natural resources where States retain ownership. Special Rapporteurs on the rights of indigenous peoples have gradually asserted that benefit-sharing is implicit in UNDRIP provisions on the right to natural resources.109 The Nagoya Protocol on Access and Benefit Sharing does make explicit reference to the rights of indigenous peoples to benefit-sharing from their natural resources, stating that Parties shall take legislative, administrative or policy measures, as appropriate, with the aim of ensuring that benefits arising from the utilization of GR that are held by indigenous and local communities, in accordance with domestic legislation regarding the established rights of these indigenous and local communities over these GR, are shared fairly and equitably with the communities concerned, based on MAT.110 8. Law of the sea As deep seabed resource exploitation is now becoming a possibility, it is important to discuss the 1982 United Nations Convention on the Law of the Sea (UNCLOS).111 First of all, UNCLOS contains benefit-sharing provisions relating to the non-living resources of the extended continental shelf, and these provisions are indirectly linked to the principle of the common heritage of humankind (CHH).112 The provisions establish an obligation for coastal States to “make payments or contributions in kind in respect of the exploitation of the non-living resources of the continental shelf” beyond 200 nm, which are to be made through the International Seabed Authority (ISA). The ISA will then distribute these payments/contributions to Parties, on the basis of equitable sharing criteria, taking into account the interests and needs of developing States, particularly least-developed/land-locked Parties.113 The ILA Committee on the Legal Issues of the Outer Continental Shelf proposes that it is up to the coastal State to determine the form, method and timing of benefit-sharing.114 The criteria for payments and contributions are to be developed by the Council, the executive organ of the ISA, in the form of rules, regulations and procedures for recommendation to the Assembly of the ISA.115 The Assembly has the power to consider and approve, upon the recommendation of the Council, such rules, regulations and procedures, taking into particular consideration the interests and needs of developing States and peoples who have not attained full independence or other self-governing status.116 In addition, UNCLOS indicates that the Area and its resources are the CHH.117 Sovereignty or sovereign rights cannot be claimed or exercised over any part of the Area or its resources, nor can a State or person appropriate any part thereof.118 All rights over resources in the Area are vested in humankind as a whole, and the ISA acts on its behalf, establishing rules, regulations and procedures whereby minerals recovered from the Area can be alienated.119 Activities in the Area will be carried out for the benefit of humankind as a whole, taking into particular consideration the interests and needs of developing States and of peoples who have not attained full independence or other self-governing status.120 The ISA is responsible for providing for the equitable sharing of financial and other economic benefits derived from activities in the Area through an appropriate mechanism, on a non-discriminatory basis, in accordance with the rules, regulations and procedures thereon proposed by the Council, taking into particular consideration the interests and needs of the developing States and peoples who have not attained full independence or other self-governing status.121 This mandate is consequential at present in the context of the development of draft Regulations on Exploitation of Mineral Resources in the Area, especially the discussions on how to operationalize the principle of the CHH, and the creation of a payment mechanism that that delivers a fair and equitable return to the CHH, balances commercial interests and supports technological development and change, which is one of the most challenging aspects in negotiations.122 9. Celestial bodies With the exploitation of the natural resources of celestial bodies about to become feasible, it also relevant to examine the 1979 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies123 (Moon Agreement) despite its limited number of ratifications, as it was adopted by the UNGA by consensus and provides the best available option for the harmonious development of space mineral resources.124 It applies The underlying Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies125 (Outer Space Treaty) has a much broader membership and establishes principles in common with the Moon Agreement, including that the exploration and use of outer space be carried out for the benefit and in the interest of all countries, irrespective of the degree of their economic or scientific development, and be the province of all mankind; and that outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.126 The Moon Agreement elaborates on these common principles, noting that due regard shall be paid to the interests of present and future generations, as well as to the need to promote higher standards of living and conditions of economic and social progress and development.127 When exploitation of the moon’s natural resources is about to become feasible, Parties will undertake to establish an international regime governing exploitation.128 The main purposes of the new regime would include the orderly and safe development of the natural resources of the moon, the rational management of those resources, and an equitable sharing by all Parties in the benefits derived from those resources, whereby the interests and needs of the developing countries, as well as the efforts of those countries which have contributed either directly or indirectly to the exploration of the moon, shall be given special consideration.129 Importantly, the provisions of the agreement relating to the moon also apply to other celestial bodies within the solar system, unless specific legal norms enter into force on those specific bodies.130 This provision would therefore apply by default to other planets, their moons, comets, asteroids.131 III. Legal obstacles facing the implementation of benefit-sharing for natural resources Benefit-sharing is employed in international biodiversity law as a treaty objective, an international obligation, a right, or a mechanism, which makes its status difficult to determine and operationalization uneven.132 It is also applied to relations that have different relevance under international law and are characterized by different de facto power asymmetries (inter-state sharing between developed/developing countries, intra-state sharing between States and communities/indigenous peoples, and between companies and communities). The provisions of international treaties relevant to benefit-sharing (eg, CBD/Nagoya Protocol and ITPGRFA) have not been widely implemented in national law. The Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment states that the “enormous problem is that [biodiversity agreements] have often not been effectively implemented and their goals have not been met.”133 This makes compliance with the rules of international law on benefit-sharing particularly hard to enforce. The Nagoya Protocol does create procedural obligations to support benefit-sharing, such as on monitoring the utilization of genetic resources and compliance (e.g. opportunities for recourse, access to justice, mutual recognition and enforcement of foreign judgments), but the provisions are quite general and leave significant leeway to Parties, which may result in measures of limited effectiveness that perpetuate obstacles to benefit-sharing for the sustainable management of natural resources for development. With regard to inter-State benefit-sharing, tensions between economic and non-economic benefits, and their immediate and global relevance, remain to be addressed. Non-monetary benefits such as technology transfer and capacity building can be essential to enhance the ability of beneficiaries to share in monetary benefits in the long term, but may also create dependency on external, ready-made solutions that may not fit particular circumstances or that may allow for the exertion of undue influence by donor countries.134 There is a sense of frustration among Southern countries due to the limited economic and non-economic benefits that have been derived to date from different bioprospecting projects and the application of ABS frameworks in general. It has also been difficult to find cost-effective legal solutions to cases of misappropriation of GR and associated traditional knowledge within the framework of national ABS legislation or intellectual property law.135 There are also legal obstacles posed by the concept of CHH and its association with the NIEO agenda. Benefit-sharing regimes have not yet been established for either the Area or the Moon, and the Chair of the ILA Space Law Committee stated to that States “appear reluctant to engage in further binding obligations on the international arena when they do not know exactly what the balance sheet will be as technology continues to develop.”136 This is pertinent in the context of both the exploitation of deep seabed resources and the resources of the moon. IV. Future international law on benefit-sharing for the sustainable management of natural resources The absence of instances in which fair and equitable benefit-sharing has been fully developed or made satisfactorily operational points to a significant research agenda. From a normative perspective, it is difficult to derive a common core with regard to its beneficiaries, for instance. Research is needed to determine the nature, extent, and implications of the principle. Legal analyses of benefit-sharing still remain to be systematically connected to ongoing theoretical discussions of different concepts of justice and possible trade-offs among them.137 Recently, benefit-sharing has also become a recognized part of the emerging concept of markets or payments for ecosystem services (eg, ABS in the CBD/Nagoya Protocol and ITPGRFA context, and the Clean Development Mechanism/REDD+ in the climate context),138 which begins to disassociate the concept from its original rationale as a non-market-based scheme aimed at development and equity. It is questionable whether economic instruments are the most effective or legitimate instruments for the international governance of biodiversity and ecosystem services, especially in the development context.139 From a practical perspective, much remains to be ascertained as to when and why benefit-sharing achieves its stated fairness and equity purposes. Situations in which it does not, and rather contributes to consolidating power and information asymmetries, are well documented. Risks attached to different benefits and the costs and losses that may be associated with certain benefits have not been fully or systematically analysed. The interaction between benefit-sharing and procedural rights (access to information, decision making, and justice) and legal empowerment approaches is also understudied. More empirical and inter-disciplinary research is needed to assess when and under which conditions benefit-sharing provides new perspectives and solutions that support the sustainable management of natural resources for development.140 Another normative question concerns future generations. There are few discussions of the contribution of benefit-sharing to inter-generational equity, despite indications in international law (mostly as preambular text of treaties) that global benefits arising from benefit-sharing may be geared towards reaching a wider group than those actively or directly engaged in bioprospecting, natural resource management, environmental protection or use of knowledge. It remains unclear to what extent global benefits may also extend to future generations, as the nature of the benefits is commonly defined with regard to the parties to the triggering activity. However, several immediate benefits shared among them are meant to preserve, restore, or enhance the conditions under which underlying global benefits (such as ecosystem services) are produced, which will benefit future generations by ensuring that development does not compromise the ability of future generations to meet their own needs.141 Preliminary research has been carried out on the relationship between private international law and the Nagoya Protocol, which “creates a private international law of access and benefit-sharing.”142 Future work may need to be carried out on compliance measures to enforce benefit-sharing agreements, and the question of access to justice in user countries, especially in cases where access has taken place in violation of the laws, policies or administrative measures of a provider country but no contractual terms have been established.143 This touches upon the extraterritorial application of the domestic law of the alleged country of origin, which is heavily contested in many cases.144 The question of recognition and enforcement of foreign judgments and arbitral awards may also come into play as the MAT may establish jurisdiction in a different jurisdiction than the one where the user resides.145 International law on benefit-sharing from natural resources in areas beyond national jurisdiction (ABNJ) is also under development. The Nagoya Protocol itself establishes that Parties will consider the need for, and modalities of, a global multilateral benefit-sharing mechanism (GMBSM) to address fair and equitable benefit-sharing derived from the utilization of GR and ATK that occur in transboundary situations or for which it is not possible to grant or obtain PIC. The benefits shared by users through the GMBSM are to be used to support the global conservation and sustainable use of biodiversity, which will be controversial as benefits will not necessarily be aimed at developing countries despite their role in negotiating this provision.146 Separate discussions on ABNJ are taking place through the UNGA, which adopted a resolution in late 2017 convening an Intergovernmental Conference to elaborate the text of an international legally binding instrument under the United Nations Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity of ABNJ, with a view to rapidly developing such an instrument.147 The Conference will meet four times, with the last meeting in mid-2020. Key topics under discussion are the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ), and marine GR, including particular focus on the issue of benefit-sharing. The work of the Intergovernmental Conference builds on a Preparatory Committee, which issued a report of its discussions which indicates that further discussions are required on marine GR and benefit-sharing related to whether the instrument should regulate access; the nature of the resources covered; the benefits shared; intellectual property rights; and monitoring utilization of marine GR in ABNJ. Consensus exists on the following: the objective of contributing to the conservation and sustainable use of marine biological diversity in ABNJ, building the capacity of developing countries to access and use marine GR in ABNJ, and that the principles and approaches guiding benefit-sharing could include being beneficial to current and future generations and promoting marine scientific research and R&D. 148 Discussions at the World Intellectual Property Organization (WIPO) at the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) have been ongoing since its establishment in 2000. The IGC has held 35 meetings and is currently undertaking text-based negotiations with the aim of agreeing on a text/s of an international legal instrument/s, which will ensure the effective protection of traditional knowledge, traditional cultural expressions and GR. The goal of discussions in 2018-19 is to narrow existing gaps and a common understanding on core issues, including definitions, beneficiaries, subject matter, objectives, scope of protection, and what subject matter is entitled to protection at an international level, including consideration of exceptions and limitations and the relationship with the public domain149 The WIPO General Assembly will take stock of progress in 2019 to decide whether to convene a diplomatic conference and/or continue negotiations, based on the maturity of the text/s.150 Supporting benefit-sharing from the use of GR and ATK is a primary issue of contention between WIPO Members. As the ISA moves towards adopting regulations under UNCLOS for mineral exploitation in the Area, it will be important to continue carrying out legal research on the appropriate mechanism for the non-discriminatory and equitable sharing of financial and other economic benefits derived from activities in the Area, which will require careful balancing of economic, social and environmental dimensions.151 It is important to continue reflecting on how the Agreement Relating to the Implementation of Part XI of the UN Convention on the Law of the Sea152 (Agreement on Part XI) will influence the implementation of the CHH principle as exploitation begins in earnest, as it notes the “political and economic changes, including market oriented approaches, affecting the implementation of Part XI.”153 The Agreement on Part XI does not modify the CHH principle, but does affect the machinery by which it operates. The limits of the principle will become clearer when distribution begins, and evidence emerges on the distribution of benefits to developing states.154 The above research agenda only covers a part of the negotiations taking place that are pertinent to the development of benefit-sharing in international law. Many discussions are also taking place in the realm of soft law development, e.g. at the FAO.155 Based on the many different fora a where negotiation of benefit-sharing is taking place, future research will need continue to monitor and take into consideration work across the multiplicity of institutions where the future of the concept is being formalized in rules of international law that could contribute to the sustainable use of natural resources for development. Much legal research remains to be done in this regard. In partnership with the German Association for the Protection of Intellectual Property (GRUR) JIPLP exchanges content with GRUR Int., the leading German-language journal specialising in intellectual property law. This section features specially-selected content from GRUR Int. for the benefit of our readers. Footnotes 1 E Morgera, The Need for an International Legal Concept of Fair and Equitable Benefit Sharing, 27(2) European Journal of International Law 353-383 (2016). 2 E Morgera (supra note 1), at 382. 3 E Morgera, Fair and equitable benefit-sharing: history, normative content and status in international law, BENELEX Working Paper N. 12 (April 2017) at 10 [Working Paper No. 12]. 4 E Morgera (supra note 1), at 383. 5 See Universal Declaration of Human Rights, 10 December 1948, UNGA Res. 217A (III), UN Doc. A/810 (1948); Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the Benefit of Mankind, 10 November 1975, UNGA Res. 3384 (XXX), UN Doc. A/10034; Declaration on the Right to Development, 4 December 1986, UNGA Res. 41/128; E Morgera, Under the Radar: Fair and Equitable Benefit-Sharing and the Human Rights of Indigenous Peoples and Local Communities Related to Natural Resources, BENELEX Working Paper N. 10 (January 2017) [Working Paper No 10]. 6 ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development, 2 April 2002, (2002) 2 International Environmental Agreements: Politics, Law and Economics 211 at 212. (“ILA Declaration”). 7 NJ Schrijver, Natural Resources, Permanent Sovereignty over, in: R Wolfrum, The Max Planck Encyclopedia of Public International Law, Oxford University Press 2012, at para. 5. 8 NJ Schrijver, Fifty Years Permanent Sovereignty over Natural Resources: The 1962 UN Declaration as the Opinio Iuris Communis, in: M Bungenberg & S Hobe (eds), Permanent Sovereignty over Natural Resources, Springer 2015, pp. 16-17; NJ Schrijver,(supra note 8), at para. 1. 9 NJ Schrijver (supra note 8). 10 NJ Schrijver (supra note 8), para. 2. 11 NJ Schrijver (supra note 8), p. 17; Permanent sovereignty over natural resources, UNGA Res. 1803 (XVII) of 14 December 1962 at para. 1. 12 NJ Schrijver (supra note 8), p. 17; UNGA Res. 1803, para. 2. 13 NJ Schrijver (supra note 8) p. 18; UNGA Res. 1803, para. 3. 14 NJ Schrijver (supra note 8), p. 18; UNGA Res. 1803, para. 8. 15 Economic Development and the Conservation of Nature, UNGA Res. 1831 (XVII) of 18 December 1962, preamble. 16 Economic Development and the Conservation of Nature, at 1(a),(c),(e). 17 NJ Schrijver (supra note 8), p. 18. 18 Permanent Sovereignty over Natural Resources, 25 November 1966, UNGA Res. 2158 (XXI), para. 5. 19 International Covenant on Civil and Political Rights, 16 December 1966 (entered into force 23 March 1976), 999 UNTS 171 at Art. 1(2); International Covenant on Economic, Social and Cultural Rights, 16 December 1966 (entered into force 3 January 1976), 993 UNTS 3 at Art. 1(2). 20 E Morgera, 27(2) European Journal of International Law 358 (2016). 21 ILA Declaration on the Progressive Development of Principles of Public International Law relating to a New International Economic Order, 54(2) Rivista di Studi Politici Internazionali 313 (1987). 22 Declaration on the Right to Development, Art. 2(3). 23 NJ Schrijver (supra note 8), at para. 16. 24 NJ Schrijver (supra note 8), at para. 24. 25 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, UN Doc. A/HRC/34/49 at para. 36. 26 Convention on Biological Diversity, 5 June 1992 (in force 29 December 1993), 31 ILM 822. 27 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization, 19 April 2002, UN Doc. UNEP/CBD/COP/6/24. 28 Convention on Biological Diversity, Art. 1. 29 N Matz-Lück, Biological Diversity, International Protection, in: R Wolfrum, Max Planck Encyclopedia of Public International Law, Oxford University Press 2012, at para. 1. 30 Convention on Biological Diversity, Art. 4(a). 31 Convention on Biological Diversity, Art. 4(b). 32 N Matz-Lück (supra note 29), at para. 28. 33 P Stoett, Wildlife Conservation: Institutional and Normative Considerations, in: N Schrijver/F Weiss (eds), International Law and Sustainable Development: Principles and Practice, Martinus Nijoff 2004, p. 514; J Cabrera Medaglia, Access and Benefit-Sharing: North-South Challenges in Implementing the Convention on Biological Diversity and its Nagoya Protocol, in: S Alam/S Atapattu/CG Gonzalez/J Razzaque (eds), International Environmental Law and the Global South, Cambridge University Press 2015, p. 195. 34 N Matz-Lück (supra note 29), at para. 35. 35 J Cabrera Medaglia (supra note 33), p. 192. 36 C Richerzhagen, Protecting Biological Diversity: The Effectiveness of Access and Benefit-Sharing Regimes, Routledge 2010, p. 59. 37 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Resulting from their Utilization, 29 October 2010 (in force 12 October 2014), UN Doc. UNEP/CBD/COP/10/27, Arts. 1 & 9. 38 Convention on Biological Diversity, Art. 2. The language of the provision is reminiscent of the definition of sustainable development of the Brundtland Commission. 39 Convention on Biological Diversity, Art. 2: “Biological diversity” means the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. 40 Convention on Biological Diversity, Art. 2: “Biological resources” includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity. 41 N Matz-Lück (supra note 29), at para. 20. 42 N Matz-Lück (supra note 29), at para. 2. 43 Convention on Biological Diversity, Preamble. 44 Convention on Biological Diversity, Art. 3. 45 Convention on Biological Diversity, Art. 15. The Nagoya Protocol on ABS reaffirms the principle of sovereign rights over natural resources recalls Art. 15 in its preamble. 46 J Cabrera Medaglia (supra note 33), p. 192. 47 N Matz-Lück (supra note 29), at para. 11. 48 Convention on Biological Diversity, Art. 6. 49 Convention on Biological Diversity, Art. 15. 50 Convention on Biological Diversity, Art. 10(a)-(e). 51 Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity, 27 February 2004, UN Doc. UNEP/CBD/COP/7/12, Annex II [Addis Ababa Principles]. 52 Addis Ababa Principles (supra note 51), Principles 4, 11, 12 and 13. 53 Convention on Biological Diversity, Preamble. 54 Convention on Biological Diversity, Art. 8(j). 55 Nagoya Protocol on Access and Benefit Sharing, Art. 5(5). 56 Bonn Guidelines (supra note 27), p. 5, para. 1. 57 Bonn Guidelines (supra note 27), para. 41. 58 Bonn Guidelines (supra note 27), para. 45. 59 Bonn Guidelines (supra note 27), para. 47. 60 Bonn Guidelines (supra note 27), para. 48. 61 Bonn Guidelines (supra note 27), para. 49. 62 Bonn Guidelines (supra note 27), para. 50. 63 GA Res. 57/260, UN Doc. A/RES/57/260 (20 December 2002). 64 A significant amount of literature is now being written about the NP. See M Buck/C Hamilton, 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, 20 Review of European Community and International Law 47 (2011); Union for Ethical Biotrade, Nagoya Protocol on Access and Benefit Sharing, <http://ethicalbiotrade.org>; G Nijar, The Nagoya Protocol on Access and Benefit-Sharing of Genetic Resources: analysis and implementation options for developing countries, South-Centre, Research Paper No. 36 (2011); S Oberthur/R Kristin (eds), Global Governance of Genetic Resources: Access and Benefit Sharing after the Nagoya Protocol, Routledge 2014; T Greiber et al., Explanatory Guide on the Nagoya Protocol, IUCN Environmental Policy and Law Paper No. 32 (2012); E. Kamau et al., The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider and User Countries and the Scientific Community, 6(3) Journal of Environment and Development 246 (2011); E Morgera et al., The 2010 Nagoya Protocol on Access and Benefit-Sharing in Perspective: Implications for International Law and Implementation Challenges, Martinus Nijhoff 2013. 65 Convention on Biological Diversity, CBD COP Decision X/1, <http://www.cbd.int>. 66 J Cabrera Medaglia (supra note 33), p. 195. 67 Examples of Non-Monetary Benefits from the Annex to the Nagoya Protocol include: (a) Sharing of R&D results; (b) Collaboration, cooperation and contribution in scientific R&D programmes, particularly biotech research activities, where possible in the Party providing GR; (c) Participation in product development; (d) Collaboration, cooperation and contribution in education and training; (e) Admittance to ex situ facilities of GR and to databases; (f) Transfer to the provider of the GR of knowledge and technology under fair and most favourable terms, including on concessional and preferential terms where agreed, in particular, knowledge and technology that make use of GR, including biotechnology, or that are relevant to the conservation and sustainable utilization of biodiversity; (g) Strengthening capacities for technology transfer; (h) Institutional capacity-building; (i) Human and material resources to strengthen the capacities for the administration and enforcement of access regulations; (j) Training related to GR with the full participation of countries providing GR, and where possible, in such countries; (k) Access to scientific information relevant to conservation and sustainable use of biodiversity, including biological inventories and taxonomic studies; (l) Contributions to the local economy; (m) Research directed towards priority needs, such as health and food security, taking into account domestic uses of GR in the Party providing GR; (n) Institutional and professional relationships that can arise from an ABS agreement and subsequent collaborative activities; (o) Food and livelihood security benefits; (q) Joint ownership of relevant IPR. 68 International Treaty on Plant Genetic Resources for Food and Agriculture 2001 (entered into force 29 June 2004), Art. 1(1). [ITPGRFA]. 69 ME Footer, Our Agricultural Heritage and Sustainability, in: N Schrijver/F Weiss (eds), International Law and Sustainable Developments: Principles and Practice, Martinus Nijhoff 2004, p. 436. 70 ME Footer (supra note 69), p. 436. 71 ITPGRFA, Art. 10.1 & 10.2. 72 ITPGRFA, Art. 12.4. 73 ITPGRFA, Art. 13.2. 74 EM Footer (supra note 69), p. 449. 75 See F Wolff, The Nagoya Protocol and the diffusion of economic instruments for ecosystem services in international environmental governance, in: S Oberthür/GK Rosendal (eds), Global Governance of Genetic Resources: Access and benefit sharing after the Nagoya Protocol, Routledge 2014, pp. 141-2. 76 ITPGRFA, Art. 9.2(a) & (b). 77 See ITPGRFA Governing Body Resolution 7/2017 “Implementation of Art. 9, Farmers Rights”. 78 See M Buck/C. Hamilton, The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Benefit Sharing Arising from Their Utilization of the Convention on Biological Diversity, RECIEL, No. 20, UK 2011. 79 See, in general T Greiber et al., An explanatory Guide to the Nagoya Protocol on Access and Benefit Sharing, IUCN Legal Paper No 32, Bonn 2012. 80 Convention for the Conservation of the Biodiversity and the Protection of Wilderness Areas in Central America, 5 June 1992 (in force 20 Dec 1994), IUCN TRE-001162 [Central American Convention]. 81 Central American Convention (supra note 80), Art. 1. 82 Central American Convention (supra note 80), Art. 5. 83 Central American Convention (supra note 80), Art. 6. 84 Central American Convention (supra note 80), Art. 7. 85 Central American Convention (supra note 80), Art. 8. 86 Central American Convention (supra note 80), Art. 16. 87 Protocolo Centroamericano de Acceso a los Recursos Genéticos y Bioquímicos y al Conocimiento Tradicional Asociado, Central American Commission on Environment and Development (not in force). See J Cabrera Medaglia, The Central American Regional Protocol on Access to Genetic and Biochemical Resources, in: C Bellmann/G Dutfield/R Meléndez-Ortiz, Trading in Knowledge: Development Perspectives on TRIPS, Trade and Sustainability, Earthscan 2003. 88 SADC Protocol on Forestry, 3 October 2002 (in force 17 July 2009), IUCN ID TRE-001361 at Art. 3(2)(g). [Luanda Protocol]. 89 Luanda Protocol (supra note 88), Art. 4(10). 90 Luanda Protocol (supra note 88), Art. 16(1). 91 Luanda Protocol (supra note 88), Art. 16(2). 92 Luanda Protocol (supra note 88), Art. 17(1). 93 Luanda Protocol (supra note 88), Art. 17(2). 94 UNFCCC, Preamble. 95 UNFCCC, Arts. 3(4) and (5). 96 UNFCCC, Art. 4. Art. 1(7) defines a “Reservoir” as “a component or components of the climate system where a greenhouse gas or a precursor of a greenhouse gas is stored”; Art. 1(8) defines a “Sink” as “any process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor of a greenhouse gas from the atmosphere.” Biodiversity plays the role of both a reservoir and sink. 97 Paris Agreement, Art. 5(1) and (2). 98 UNCCD, Preamble. 99 UNCCD, Art. 2(1) and (2). Art. 1(e) defines “Land” as “the terrestrial bio-productive system that comprises soil, vegetation, other biota, and the ecological and hydrological processes that operate within the system”; Art. 1(f) indicates that “Land degradation“ consists of the “reduction or loss, in arid, semi-arid and dry sub-humid areas, of the biological or economic productivity and complexity of rainfed cropland, irrigated cropland, or range, pasture, forest and woodlands resulting from land uses or from a process or combination of processes, including processes arising from human activities and habitation patterns, such as: (i) soil erosion caused by wind and/or water; (ii) deterioration of the physical, chemical and biological or economic properties of soil; and (iii) long-term loss of natural vegetation.” 100 UNCCD, Art. 6(e). 101 UNCCD, Art. 16(e). 102 UNCCD, Art. 17(1)(c). 103 UNCCD, Art. 18(2)(b). 104 Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169), 27 June 1989 (in force 5 September 1991), Art. 15(1). [ILO Convention 169]. 105 ILO Convention 169 (supra note 104), Art. 15(2). 106 E Morgera (supra note 5), at 9. 107 United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, UN Doc. A/RES/61/295. 108 American Declaration on the Rights of Indigenous Peoples, 15 June 2016, OAS Doc. AG/RES. 2888 (XLVI-O/16). 109 E Morgera (supra note 5), at 11. 110 Nagoya Protocol on ABS, Art. 5(2). 111 United Nations Convention on the Law of the Sea, 10 December 1982 (entered into force 16 November 1994), 1833 UNTS 3. [UNCLOS]. 112 See Report on Art. 82 of the 1982 UN Convention on Law of the Sea, ILA Rio de Janeiro Conference (2008), Committee on the Outer Continental Shelf. [ILA Report on Art. 82 of UNCLOS]. 113 UNCLOS (supra note 111), Art. 82.4. 114 ILA Report on Art. 82 of UNCLOS (supra note 111). 115 UNCLOS (supra note 111), Art. 162(2)(o)(i). 116 UNCLOS (supra note 111), Art. 160(f)(i). 117 UNCLOS (supra note 111), Art. 136. The Area is the seabed beyond national jurisdiction. 118 UNCLOS (supra note 111), Art. 137(1). Art. 133 defines “resources” as all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules, and that resources recovered from the Area are referred to as “minerals”. 119 UNCLOS (supra note 111), Art. 137(2). 120 UNCLOS (supra note 111), Art. 140(1). 121 UNCLOS (supra note 111), Art. 160(f)(i). 122 Briefing note to the Council on the submissions to the draft regulations on exploitation of mineral resources in the Area, Advance Text, 21 February 2018, UN Doc. ISBA/24/C/CRP.1 at para. 17 and Annex II, para. 2. 123 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 5 December 1979 (entry into force 11 July 1984), 1363 UNTS 3 [Moon Agreement]; See also Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of all States, Taking into Particular Account the Needs of Developing Countries, UN Doc. A/RES/51/122. 124 R Lefeber, Relaunching the Moon Agreement, 41(1) Air and Space Law 41 (2016). 125 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967 (entry into force 10 October 1967), 610 UNTS 205. [Outer Space Treaty]. 107 Parties as of 1 January 2018. 126 Outer Space Treaty (supra note 122), Art. 1; Moon Agreement (supra note 120), Art. 4(1). 127 Moon Agreement (supra note 123), Art. 4(1). 128 Moon Agreement (supra note 123), Art. 11(5). 129 Moon Agreement (supra note 123), Art. 11(7)(a) and (d). 130 Moon Agreement (supra note 123), Art. 1. 131 See IA Crawford, The long-term scientific benefits of a space economy, 37(2) Space Policy 58 (2016) for the relevance of cosmic resources for a space-based economy and S Barton/H Recht, The Massive Prize Luring Miners to the Stars, 8 March 2018, online: <https://www.bloomberg.com/graphics/2018-asteroid-mining/for the potential value of such resources>. 132 E Morgera (supra note 1), at 355. 133 Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, at para. 40. 134 E Morgera (supra note 1), at 369. 135 J Cabrera Medaglia (supra note 33), p. 196. 136 Answers from the Chair of the Space Law Committee of the International Law Association (ILA) to questions by the Chair of the Working Group of the LSC, 22 April 2015, UN Doc. 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TI - The benefit-sharing principle in international law
JF - Journal of Intellectual Property Law & Practice
DO - 10.1093/jiplp/jpy162
DA - 2019-01-01
UR - https://www.deepdyve.com/lp/oxford-university-press/the-benefit-sharing-principle-in-international-law-Q0Um5uzGAM
SP - 62
VL - 14
IS - 1
DP - DeepDyve
ER -