This article utilises the systems thinking approach to draw a holistic and inclusive map of benefit-sharing under international law. The systems thinking definition and context employed by the present paper is that of Meadows who defines a system as “an interconnected set of elements that is coherently organised in a way that achieves something” (Meadows and Wright 2009). Benefit-sharing, be it within the access and benefit-sharing realm, or in a broader human rights or environmental law setting, is a purposeful arrangement of international law with interconnected elements. Notwithstanding whether this interconnectedness has been a conscious design by the lawmaker or not, there exists an inseparable dependence between the achievement of human rights objectives and environmental objectives. Therefore, benefit-sharing in human rights law constitutes a system which fits the definition of Meadows, even if this system is spread around different branches of international law such as human rights law and environmental law.
At the high level, this interconnectedness has been initially reaffirmed by Report of the United Nations High Commissioner for Human Rights in 2011 (A/HRC/19/34) and benefit-sharing is not an exception to this interconnectedness. This is because, benefit-sharing appears both in international human rights and international environmental law contexts and therefore inherently requires an analysis that encapsulates a critical reflection on the historical, social, and institutional systems tied to its creation. Additionally, benefit-sharing system, be it in its human rights or environmental context, or both, is ought to be producing outcomes, i.e. benefits (Pierson-Brown 2020) which are then either channelled into conservation or incentivising conservation, or are made available to the beneficiaries. The beneficiaries are those who are either historically, socially or institutionally made the transaction possible which generated the benefits. The examples of beneficiaries include the countries of the Global South or indigenous people and local communities.
International law provides mechanisms for conservation and restoration of biodiversity resulting from utilising nature. One of these is fair and equitable sharing of benefits arising from genetic resources (Convention on Biological Diversity 1992). The system of access and benefit-sharing (ABS) aims to fairly distribute benefits between the providers (such as biodiversity-rich countries) and users of genetic resources (such as biotechnology or pharmaceutical companies, universities, collections such as botanical gardens or gene banks) deriving from research and development on genetic resources. The ABS system prescribes to the Parties to the Convention on Biological Diversity to implement national legislation on provisioning fair access to the users of genetic resources while securing fair and equitable monetary benefits (such as access fees, royalties, licence fees) as well as non-monetary benefits (such as technology transfer, participation in research, recognition of country of origin or capacity building) to the providers of genetic resources. These benefits should then be channelled into biodiversity conservation (Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising from their Utilisation 2010).
Under human rights law, the concept of benefit-sharing has been mentioned in relation to the right to self-determination, right to participate in decision-making the right to development, the right to enjoy the benefits of scientific progress and technology, and the rights of indigenous peoples and local communities in participating decision-making as well as participation in benefits from the use, management and conservation of natural resources (UNGA Res. 217A (III) UN Doc. A/810 (1948); UNGA Res. 3384 (XXX); UN Doc. A/10034; UNGA Res. 41/128; International Labour Organisation Indigenous and Tribal Peoples Convention Articles 6 and 15). The most elaborate exposé on the issue of benefit-sharing from scientific research can be found in Article 27.1. of the Universal Declaration of Human Rights which is further complemented with Article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) describing the right to participate in the benefits of scientific advancement. Recently, the concerns about research on biological material and human rights have been incorporated in the Universal Declaration on Bioethics and Human Rights, with specific attention to benefit-sharing under Article 15. Benefit-sharing under human rights law has often been coupled to the right to health as well as mechanisms such as technology transfer, capacity building and participation in research (International Bioethics Committee 2015).
Benefit-sharing in environmental and human rights law thus have common modalities of implementation. For instance, it is common to both realms to foresee benefit-sharing mechanisms such as technology transfer, capacity building and participation in research as well as taking part in decision-making regarding the use and conservation of biodiversity (SHS/YES/IBC-22/15/3). It should therefore not come as a surprise that the Preamble of Nagoya Protocol clearly sees this interconnection as its Preamble explicitly refers to the United Nations Declaration on Indigenous Peoples.
Even though the human rights treaties have initiated the concept of benefit-sharing that derives from scientific research, the normative context has been further detailed in relation to genetic resources under the CBD, the International Treaty on Plant Genetic Resources for Food and Agriculture, the Pandemic Influenza Preparedness Framework and the Nagoya Protocol regarding the obligation to share benefits derived from the utilization of genetic resources. Furthermore, its relation to marine genetic resources beyond in areas beyond national jurisdiction is currently being discussed under the UN Convention on the Law of the Sea which will be implemented as a separate benefit-sharing treaty for marine genetic resources (UNGA Resolution A/RES/59/24). The common objective of these instruments is fair and equitable sharing of benefits arising from the research and development activities in the realm of genetic resources with the overarching aim of biodiversity conservation by means of benefit-sharing.
Despite the existing framework on biodiversity conservation, the global community continues to fail meeting its conservation targets. Benefit-sharing under international law aims to be a tool to generate means for conservation in return for the utilisation of genetic resources, however, the implementation has proven to be insufficient as there is a lack of benefits channelled into conservation. With the current trajectories, we cannot meet global targets such as the Sustainable Development Goals 3, 13, 14 and 15 (IPBES 2019). Additionally, achievement of many human rights objectives such as those listed under the UN Sustainable Development Goals inherently depends on the maintenance of a healthy environment (A/HRC/19/34, A/RES/70/1). The lack of achievement related to environmental objectives can therefore jeopardize the achievement of human rights objectives. 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.’ (A/HRC/31/52) Consequently, the provenance and prevalence of benefit-sharing in international law needs the analysis from both the human rights and the environmental law perspectives as these are interdependent. Therefore, on top of the gap in literature related to the definition and achievement of objectives, the concept of also lacks the full-fledged legal analysis combining the two angles.
This paper serves as a prelude to the broader, holistic study of benefit-sharing in international environmental law and human rights law, or as the author would like to call it; the notion of reciprocity in international law. Due to its topicality, and due to the fact that it is the only mechanism at the international level which places accountability on benefit-sharing and what it is ought to achieve, this paper will initiate this broader study’s holistic thought process through the current negotiations of the Global Biodiversity Framework (GBF). At the time of drafting this paper (July 2022), there currently is no final decision on the text and parameters of the GBF. Nonetheless, the paper aims to utilise the latest draft and discussions related to benefit-sharing to demonstrate the importance attached to the holistic thinking regarding the benefit-sharing system in the international discussions hoping to place accountability of its legal frameworks on conservation.