The BeneLex project addresses the question: can benefit-sharing address the equity deficit within the green economy? It aims to investigate the conceptual and practical dimensions of benefit-sharing – a legal tool seeking to equitably allocate among different stakeholders economic as well as also socio-cultural and environmental advantages arising from the conservation and sustainable use of natural resources, or from their regulation.
The project thus explores benefit-sharing as an under-theorised and little-implemented regulatory approach to address inter-related global environmental challenges (such as climate change, biodiversity loss, land degradation and the protection of the marine environment) by accommodating the special circumstances, cultural preferences and vulnerabilities of developing countries and of indigenous peoples and local communities in transitioning to the green economy.
The BeneLex project ("Benefit-sharing for an equitable transition to the green economy - the role of law") is funded through a European Research Council Starting Grant made to Elisa Morgera running for five years from 1 November 2013.
Benefit-sharing is employed in a variety of international legal instruments on environmental protection, human rights and corporate accountability (see your mind maps) but there persists a remarkable lack of clarity as to what benefit-sharing exactly entails, how it applies and whether there is just one benefit-sharing concept or many.
Does it require sharing research results, profits or technology? And/or does it require legal recognition of traditional access to lands or opportunities for the shared management of natural resources? This uncertainty may be regarded, on the one hand, as the product of the fragmentation of relevant international efforts, and on the other hand, as the result of limited scholarly reflection on the overall scope and broad implications of benefit-sharing within and across international regimes.
Meanwhile, a burgeoning transnational practice has emerged on benefit-sharing in connection with the use of “biocultural community protocols,” through which indigenous peoples and local communities express their understanding of the most culturally and biologically appropriate form of benefit-sharing in a specific local context. These protocols form the basis for communities’ cooperation with governments and private companies.
They operate at the intersection of communities’ customary laws, international environmental and human rights law, national and transnational law. The complex, multi-level legal developments concerning benefit-sharing are yet to be fully analysed –let alone informed – by legal scholarship. The BeneLex project will be the first systematic evaluation of the conceptualisations and operationalisations of benefit-sharing as a tool for equitable change.
Why the green economy?
The green economy provides a frame for the evaluation of the conceptual and practical dimensions of benefit-sharing. The idea of green economy emphasises opportunities for business development, job creation and public-sector savings that may arise from environmental management; and also calls for a synergetic approach to tackling climate, biodiversity and energy crises. At the UN Conference on Environment and Development held in June 2012, the international community encouraged a transition to a green economy, but the details of such transition remain controversial.
In particular, fears of a profit-driven and high-tech agenda for environmental management have fuelled criticism that the green economy is not fair to developing countries that lack necessary funding and technology. In addition, concerns have arisen about the marginalisation of indigenous and local communities that contribute to environmental conservation in ways that are difficult to capture in purely economic terms.
Focusing on these equity concerns, the project will determine whether benefit-sharing can serve to reframe the green economy as an opportunity to mainstream equity across different international environmental regimes both among and within States. Among States, the project will assess whether and how benefit-sharing can contribute to ensuring equitable solutions to environmental challenges that facilitate consensus between developed and developing countries.
Within States, the project will assess whether and how benefit-sharing can contribute to the respect by governments and by business operators of the human rights of indigenous peoples and local communities in the conservation and sustainable use of natural resources. Both dimensions will aim to clarify whether and how benefit-sharing can provide a concrete and constructive way forward when conflicts arise among competing environmental objectives or between environmental and equity concerns.
What are we focusing on?
The BeneLex project aims to reply to the following questions:
- What does benefit-sharing mean across different international regimes (biodiversity, climate change, land and agriculture, oceans, human rights)?
- To what extent and under which conditions does benefit-sharing support equity and the protection of human rights in the transition to the green economy across key inter-related sectors of international environmental regulation?
- How does benefit-sharing develop and operate at the intersection of international, transnational and national law and the customary law of local communities and indigenous peoples (global environmental law)?
- What are the roles and responsibilities of transnational legal advisors (NGOs and bilateral cooperation partners) in an equitable transition to the green economy?