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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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