Possibilities for Justice and Equity in Human Rights and Climate Law: Benefit-Sharing in Climate Finance

Kim Bouwer

doi:10.1163/18786561-11010001

Abstract

Abstract This article examines benefit-sharing in the context of climate finance. Both benefit-sharing and climate finance are complex, heterogeneous, and fast-developing fields, where the interaction of international human rights law and climate law can create both clarity and confusion. Benefit-sharing as a means for greater equity and fairness is increasingly used or included in materials on climate finance, despite lacking clear conceptualization in this context. The article does three things. First, it establishes benefit-sharing as an emerging obligation in human rights law and environmental law. Second, it explores how benefit-sharing appears in the climate regime, with a view to determining whether benefit-sharing has a distinct meaning in this context – and, if so, what it is. The article argues that both the meaning and the practice of benefit-sharing in climate finance are incoherent. Third, the article interrogates the possibilities and problems of adopting universalized norms of benefit-sharing in this context, and suggests some places where norms might be beneficial.

Highlights

This article examines fair and equitable benefit-sharing in climate finance law.[1]
It establishes benefit-sharing as an emerging obligation in human rights law and environmental law
The cbd enjoys high levels of participation and ratification, entailing high levels of consensus – as is well known, the United States is not a party. In this context the cbd may be considered complementary to international human rights law,[21] and perhaps to other international regimes for the Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010, for the promotion of benefit-sharing from the use of natural resources

Summary

Introduction

This article examines fair and equitable benefit-sharing in climate finance law.[1]. The scope and normativity of benefit-sharing, as well as the institutional and regulatory framework of climate finance, are unsettled and continue to change shape. The article examines benefit-sharing obligations and practices in relation to project-based finance dispensed through the ‘climate funds’ (defined below). It borrows from jurisprudence in other areas of environmental law to inform this concept. The focus here is very narrowly on the potential to achieve equity and fairness within climate responses,[9] in relation to benefit-sharing The effectiveness of these projects (both financially and in terms of climate goals) is important, but this is beyond the scope of the article.[10] Third, the article is focused on the provision of finance through the ‘climate funds’, viz.

Benefit-Sharing in International Environmental Law and Human Rights Law

39 Which includes forests

Conclusion