It is no secret that benefit-sharing has been significantly developed under the Convention on Biological Diversity (CBD) as a legal tool to operationalize equity among and within States. What has largely passed under the radar, however, is that the idea of benefit-sharing is increasingly being taken up in a number of other international legal developments related to natural resources, human rights and corporate accountability.

Under the CBD, the 2010 ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization’ has spelt out international obligations about sharing the benefits arising from the use of genetic resources among States, as well as within States when genetic resources are held by indigenous and local communities or when their traditional knowledge associated with genetic resources contributes to research and development. In addition, under Article 8(j) of the Convention, several work programmes and guidelines have provided a menu of options on how to ensure that benefits are shared with indigenous and local communities whose traditional knowledge contributes to the conservation and sustainable use of biodiversity more generally. Furthermore, the ecosystem approach (as elaborated upon by the CBD Parties) refers to benefit-sharing as a reward for ecosystem stewards, calling for the removal of perverse incentives and the introduction of positive incentives for good management practices, based on the proper valuation of ecosystem services.

These and many other references to benefit-sharing, scattered across a plethora of CBD COP decisions, need to be read together. On that basis, it can be argued that benefit-sharing has blossomed into a promising legal tool for the equitable allocation among different stakeholders of economic, as well as socio-cultural and environmental, advantages arising from the conservation and sustainable use of natural resources and their regulation. It thus may create opportunities to accommodate the special circumstances, cultural preferences and vulnerabilities of developing countries and of indigenous peoples and local communities. Among States, benefit-sharing may materialize in the sharing of information, technology, conservation efforts or profits that strengthen international cooperation. Within States, benefit-sharing may contribute to the legal recognition of traditional and community-based practices, the protection of traditional knowledge, enhanced participation in decision-making, as well as income-generation and job-creation opportunities for indigenous and local communities.

Partly based on these developments under the CBD, references to benefit-sharing are mushrooming in other areas of international policy, law and scholarship. With regard to human rights and corporate accountability, for instance, arrangements for benefit-sharing are seen as an indispensable procedural guarantee before proceeding with extractive or conservation activities in or affecting lands and natural resources traditionally owned or used by indigenous peoples. In the area of climate change, benefit-sharing requirements have emerged in the context of REDD+ and climate finance. In the context of transboundary rivers, benefit-sharing appears to challenge a purely quantitative approach to equitable water use, by factoring in economic, social, cultural and environmental values that are critical for poverty reduction and conflict prevention. Benefit-sharing has further emerged in discussions on the right to food, natural resource tenure and responsible agricultural investment.

Such ubiquity is all the more surprising given that the existing models of benefit-sharing are not yet fully or successfully operational. This is demonstrated by limited experiences accrued by CBD parties, and also by the intergovernmental work recently initiated under the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGR), which encompasses a sophisticated model to ensure that sufficient benefits are effectively shared among States and directed towards farmers in developing countries.

But why and how has benefit-sharing diffused from one regime to another? Or are some of the references to it the result of disconnected negotiations in different arenas? And are there lessons to be learnt in developing or operationalizing benefit-sharing in one regime that can be useful for other regimes? Ultimately, to what extent and under which conditions can benefit-sharing effectively support States in reaching consensual, solidarity-based decisions on tackling global environmental challenges and respecting human rights? And, crucially, when can it not? These questions remain open, as no comprehensive and systematic understanding exists to date of benefit-sharing across different international regimes.

Undeniably benefit-sharing has an attractive ring to it. Even if vague in content and timeframe, it holds the promise of directly addressing perceived injustices about access, ownership and/or control of natural resources that help motivate participation by different stakeholders. On the other hand, benefit-sharing can be (and has been) used as a superficial means to garner social acceptability of certain natural resource developments or regulations, and even to rubber-stamp inequitable projects. Such cases – the “broken” or “empty” promises of benefit-sharing – have been documented in the mining and forestry sectors, for instance.

A systematic and critical examination of benefit-sharing is thus needed. For while our understanding of this legal tool remains vague and patchy, there is little chance for any of its promises to be realized. A new five-year project at Edinburgh University Law School is investigating benefit-sharing as an under-theorized and little-implemented regulatory approach to addressing global environmental challenges equitably. The project is titled ‘BENELEX – Benefit-sharing for an equitable transition to the green economy: the role of law’ and is funded by the European Research Council. The project team looks forward to engaging ‘Biodiversity Policy and Practice‘ readers in its ongoing research efforts and will periodically share its findings with a view to receiving feedback from all interested stakeholders.

More information can be found at: http://www.benelex.ed.ac.uk.