Working paper Open Access

Under the Radar: The Role of Fair and Equitable Benefit-sharing in Protecting and Realizing Human Rights Connected to Natural Resources

Morgera, Elisa

As a result of little-noticed cross-fertilization between international environmental law and international human rights law, fair and equitable sharing of benefits is emerging as an inherent component of the human rights of indigenous peoples and local communities that may be affected by traditional forms of natural resource extraction and by nature conservation measures. This article will first assess the current degree of cross-fertilization of international human rights and environmental law on benefit-sharing from the use of natural resources, focusing in particular on international biodiversity law (Section 1). It will then unveil further avenues to pursue a mutually supportive interpretation by strategically analysing the interplay of international benefit-sharing obligations with environmental assessment and consent (Section 1). This will serve to substantiate four inter-linked normative claims. Benefit-sharing has a substantive core linked to communities’ choice and capabilities, as well as a procedural one linked to communities’ agency as part of a concerted, culturally appropriate and iterative dialogue with the State. So understood, benefit-sharing expands considerably the scope and approach of environmental assessments and consultation practices. It allows to move beyond a defensive approach that conceptualizes benefit-sharing as a mere procedural “safeguard” towards a potentially transformative collaboration in light of indigenous understandings. Benefit-sharing should then be distinguished from compensation, with which it is often conflated, as it does not depend upon a violation of a right. Finally, the proposed interpretation of benefit-sharing has implications for understanding the status of fair and equitable benefit-sharing in international law (Section 3), as well as for businesses’ due diligence to respect the human rights of indigenous peoples and local communities (Section 4).

BENELEX Working Paper No 10.-- Last revised 30 Oct 2018
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