Abstract
This article attempts to bridge the multi-disciplinary debate on environmental justice and the traditional international legal debate on equity with a view to analysing the legal concept of benefit-sharing in international law. To that end, the article uses the Nagoya Protocol to the Convention on Biological Diversity as a testing ground for: (i) unpacking different notions of justice that may be pursued through fair and equitable benefit-sharing from access to genetic resources and the use of associated traditional knowledge; and (ii) relating different notions of justice to the different functions that equity plays in international law. The aim is to test the potential wider application of linking a pluralist notion of environmental justice to different functions of equity in other areas of international law that refer to benefit-sharing. It is argued that this helps systematically unveil implicit legal design choices in relation to the pursuit of justice through international lawmaking, and interpret international legal instruments in ways that can contribute to negotiate concrete understandings of justice on a case-by-case basis.
Highlights
The Convention on Biological Diversity[1] (CBD) has not attracted sufficient scholarly attention as a prolific international law-making engine. 2 It has been remarkably successful in building consensus[3] among the totality of States in the international community, with the notable exception of the United States,[4] in gradually developing international biodiversity law so as to ensure mutual supportiveness among different international environmental agreements, 5 and with human rights.[6]
This article attempts to bridge the multi-disciplinary debate on environmental justice and the traditional international legal debate on equity with a view to analysing the legal concept of fair and equitable benefit-sharing in international law
The article uses the Nagoya Protocol to the Convention on Biological Diversity as a testing ground for: i) unpacking different notions of justice that may be pursued through fair and equitable benefit-sharing from access to genetic resources and the use of associated traditional knowledge, and ii) relating different notions of justice to the different functions that equity plays in international law
Summary
The Convention on Biological Diversity[1] (CBD) has not attracted sufficient scholarly attention as a prolific international law-making engine. 2 It has been remarkably successful in building consensus[3] among the totality of States in the international community, with the notable exception of the United States,[4] in gradually developing international biodiversity law so as to ensure mutual supportiveness among different. It is proposed here to analyse the Nagoya Protocol, and in particular the legal concept of fair and equitable benefit-sharing 10 that it enshrines, by drawing on the multi-disciplinary debate on justice and linking it with the traditional debate on equity in international law. The aim is to demonstrate the potential wider application of this approach to other areas of international law where the legal concept of fair and equitable benefit-sharing is used (section 4 below), from a two-fold perspective. This approach may help unveil systematically implicit legal design choices in relation to the pursuit of justice through international law-making. It may help identify interpretations of international legal instruments that can contribute to negotiate concrete understandings of justice on a case-by-case basis (through implementation or adjudication)
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