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Equity in interna,onal (environmental) law:
Findings and ques,ons about fair and equitable benefit-‐sharing
• Improvement in human well-‐being and livelihoods
‘arising from’
• conservaSon
• sustainable use
• envt’l regulaSon
• Not resource alloca,on per se BUT posi,ve implica,ons of human interac,ons with nature
Beneficiaries
• Indigenous peoples
• local community?
• Farmers • Tenure right holders?
• Ecosystem stewards
• TK holders
• vulnerable/ poor?
• Public at large? [Aarhus – social jusSce?]
…faced with actual POWER imbalances !!! Social acceptance? Rubber-‐stamping?
Excluding? Elite capture? Inherently exploitaSve?
…so the ques,ons are:
• Is the internaSonal concept of benefit-‐sharing … – Ill-‐conceived (by sewng aside quesSon of sharing costs and risks)?
– Unworkable?
• Why is it not working? – Guarantees to be added? – Need to effecSvely rely on full panoply of opportuniSes across the board of internaSonal law?
Substan,ve vs procedural dimensions?
Substan,ve
Procedural
[ProtecSon of human rights] socio-‐cultural EIA
[ConservaSon & sustainable use] FPIC/ consultaSon
LegiSmate expectaSons? Fair procedure?
Non-‐discriminaSon? Transparency?
ProporSonality?
Int’l Biodiv & Human Rights Law
Int’l Investment Law [Klager]
BUT inherent tension: fair/procedural/legiSmacy tends towards stability within the legal system while equitable/substanSve/redistribuSve tends towards change …SO need to proceed by way of “fairness discourse” to balance these tensions premised on non-‐trumping & minimum condi,ons [Franck]
Framings & func,ons of benefit-‐sharing • Objec,ve • Principle (criteria for balancing interests) • Obliga,on • a Right or a Safeguard?