Under the radar : the role of fair and equitable benefit-sharing in protecting and realising human rights connected to natural resources

Morgera, Elisa (2019) Under the radar : the role of fair and equitable benefit-sharing in protecting and realising human rights connected to natural resources. International Journal of Human Rights, 23 (7). pp. 1098-1139. ISSN 1744-053X (https://doi.org/10.1080/13642987.2019.1592161)

[thumbnail of Morgera-IJHR-2019-the-emergence-of-fair-and-equitable-benefit-sharing-as-an-inherent-component-of-human-rights]
Preview
 Text. Filename: Morgera_IJHR_2019_the_emergence_of_fair_and_equitable_benefit_sharing_as_an_inherent_component_of_human_rights.pdf
Accepted Author Manuscript
Download (925kB)| Preview

Abstract

This article assess the degree of cross-fertilisation of international human rights and environmental law on fair and equitable benefit-sharing in relation to the human rights of indigenous peoples and local communities over natural resources. It also explores further avenues to develop a mutually supportive interpretation by strategically analysing the interplay of international benefit-sharing obligations with environmental assessment and free prior informed consent. This will serve to substantiate four inter-linked claims. Benefit-sharing has a substantive core linked to communities’ choice and capabilities, as well as a procedural one linked to communities’ agency as part of a concerted, culturally appropriate and iterative dialogue with the State. Benefit-sharing expands considerably the scope and approach of environmental assessments and consultation practices, having the potential to move towards a transformative collaboration in light of multiple worldviews. Benefit-sharing should then be distinguished from compensation, with which it is often conflated, as it does not depend upon a violation of a right. Finally, the proposed interpretation has implications for understanding the status of fair and equitable benefit-sharing in international law, as well as for businesses’ due diligence to respect the human rights of indigenous peoples and local communities.

ORCID iDs

Morgera, Elisa ORCID logoORCID: https://orcid.org/0000-0002-5234-8784;
CORE (COnnecting REpositories)