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19 Rev. Eur. Comp. & Int'l Envtl. L. 150 (2010)
The Evolution of Benefit Sharing: Linking Biodiversity and Community Livelihoods

handle is hein.journals/reel19 and id is 150 raw text is: 


RECIEL 19 (2) 2010. ISSN 0962 8797


The Evolution of Benefit Sharing: Linking

Biodiversity and Community Livelihoods


             Elisa Morgera and Elsa Tsioumani


This article traces the evolution of the use of the legal
concept of benefit sharing in the context of the Conven-
tion on  Biological Diversity (CBD),  with a  view  to
highlighting its contribution to indigenous and  local
communities'  livelihoods. To this end, the article pro-
poses a distinction between inter-State benefit sharing
(as identified in the third CBD objective and as usually
linked to  access to genetic resources)  and  notably
lesser known  State-to-community   benefit sharing (in
relation to the conservation  and  sustainable use of
biodiversity). The article highlights the different legal
connotations  of  the two   dimensions  of  this legal
concept, while  supporting  an integrated  interpreta-
tion of the CBD. It points to a wide array of benefit-
sharing-related tools under the CBD  that can be used
to support  indigenous  and  local communities'  live-
lihoods in pursuing  the convention's three objectives.
The article also identifies other international processes
-  in the areas  of intellectual property, health and
climate change  - in which  these conceptual develop-
ments  may  have a significant influence.



INTRODUCTION

There has been  a significant evolution of the use of the
legal concept of benefit sharing in the context of the
Convention  on Biological Diversity (CBD) and its con-
tribution to indigenous and local communities'  liveli-
hoods.  In  particular, according to the  text of the
convention  and the decisions of its Conference of the
Parties (COP),' the concept of benefit sharing has been
evolving  not only in  relation to the use of genetic
resources, but also, with remarkably different legal con-
notations, to the conservation and  sustainable use of
biodiversity. Accordingly, this leads to distinguishing


1 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992).
On the question of the legal significance of COP decisions, see J.
Brunn6e, 'COPing with Consent: Law-Making under Multilateral Envi-
ronmental Agreements', 15:1 Leiden Journal of International Law
(2002), 1; and T. Gehring, 'Treaty-Making and Treaty Evolution', in D.
Bodansky, J. Brunn6e and E. Hey (eds), The Oxford Handbook of
International Environmental Law (Oxford University Press, 2007),
467, at 491-495.


inter-State benefit sharing2 from State-to-community
benefit sharing.

The  text of the  CBD  refers prominently  to benefit
sharing as its third objective in Article 1 (objectives):

the  fair and equitable sharing of the benefits arising out of
the  utilization of genetic resources, including by appropriate
access to genetic resources and by appropriate transfer of
relevant technologies, taking into account all rights over
those  resources and to technologies, and by appropriate
funding.

In this instance, benefit sharing is tied to the use of
genetic  resources   and   embodies   an   inter-State
approach   to achieve  sustainable development and
equity.3 The first part of this article will discuss the
extent to which inter-State benefit sharing can contrib-
ute to communities' livelihoods, exploring relevant dis-
cussions in the context of negotiations on access and
benefit sharing (ABS) under  the CBD, and  addressing
also the relevant provisions of the International Treaty
on Plant Genetic  Resources for Food  and Agriculture
(ITPGR).4

On  the other hand, another key provision of the CBD
envisages a  qualitatively different concept of benefit
sharing as a State-to-community  contribution to sus-
tainable development   and equity. CBD,  Article 8(j),
with  a significantly qualified formulation, calls on
parties to  encourage  the  equitable sharing  of the
benefits arising from the utilization of the knowledge,
innovations and practices of indigenous and local com-
munities embodying   traditional lifestyles relevant for
the  conservation and   sustainable use  of biological
diversity (thus, with a specific reference to the first and


2 The inter-State dimension was stressed in D. Shelton, 'Fair Play,
Fair Pay: Preserving Traditional Knowledge and Biological
Resources', 5 Yearbook of International Environmental Law (1994),
76, at 83.
3 For a discussion of the legal concept of equity and its specific
application in the context of the fair and equitable benefit sharing, see
F. Francioni, 'Equity', in R. Wolfrum (ed.), Max Planck Encyclopedia
of Public International Law (Oxford University Press, 2010).
4 International Treaty on Plant Genetic Resources for Food and Agri-
culture (Rome, 3 November 2001).


@ 2010 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA.
150

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