right to science, benefit-sharing, equity, international law, biodiversity, human rights
As the debate about the need to clarify the content of the human right to science intensifies, this article assesses opportunities for opening a scholarly and policy dialogue on fair and equitable benefit-sharing between international human rights and biodiversity lawyers. To that end, the article contrasts the emerging conceptualizations of the right to science in the context of international cultural rights and of fair and equitable benefit-sharing under international biodiversity law. It then critically assesses the potential for cross-fertilization with specific regard to: the sharing of scientific information and promotion of scientific cooperation, the transfer of technology, and the protection and valorization of traditional knowledge of indigenous peoples and local communities. While acknowledging that both the right to science and fair and equitable benefit-sharing are far from being fully understood or operationalized, the article argues that developments in international biodiversity law concerning the latter may provide insights into how a vague and optimistic concept can (and when it cannot) lead to tangible outcomes, rather than remaining merely rhetorical.
(2015) Laws 4 pp.803-831
Fair and Equitable Benefit-sharing at the Cross-roads of the Human Right to Science and International Biodiversity Law
Prudence E. Taylor
International Law, Environmental Law, Ethics, Ecological Rights
One of the most interesting developments in international environmental law in recent years has been the attempt to create links between the ethics debate and law reform. These attempts began with the recognition that philosophical discussions concerning the relationship between humanity and nature, and the moral worth of nature, were not only relevant to understanding the limitations inherent within current law, they were also fundamental to creating new legal obligations. As a consequence the language of philosophers began to emerge in the context of legal discourse. Phrases such as the “intrinsic value” of nature, “respect for nature,” “responsibility for nature,” and “future generational equity” have often found a place in dialogue and writings concerning traditional and new environmental legal obligations. At the municipal level this trend can be traced back to the late 1970s, while developments at the international level occurred more slowly. Nevertheless, by 1991 one of the first texts on international environmental law acknowledged that “ethical and philosophical concepts are crucial in understanding the actual nature of environmental law and the challenge it poses to international law.” 1
The task of this article is to consider a link between environmental ethics and human rights law in the form of “ecological rights.” The phrase “ecological rights” is used here to describe human rights which are subject to certain limitations. These limitations recognize that individual freedoms are exercised in an ecological context, in addition to a social context. In comparison, “environmental rights” …
(1998) 10 Georgetown Environmental Law Review 309
From Environmental to Ecological Human Rights: A New Dynamic in International Law
constitutional rights, ecologically balanced environment, environmental rights, environmental protection
Distinguished speakers from several European and non-European countries were willing to come to Ghent on 28 September 2007, to provide an answer to the question if the right to an ecologically balanced environment should receive express provision in the constitution of a modern democratic state. Is environmental protection sufficiently important to receive guarantees for it at the highest level? Should environmental protection be considered a human right? A growing number of states constitutionalize environmental rights. Belgium for example introduced in 1994 the right to an ecologically balanced environment in its constitution. The question arises why not all EC-Member States laid down this right in their constitution. What are the arguments pro and contra? Which legal consequences can be deduced from the constitutional right to an ecologically balanced environment? Should environmental issues be given priority over other policy objectives, as a result of the constitutional status of the right? Could a constitutional right remedy an eventual gap in legal protection of interested parties? Does a constitutional recognition of a fundamental right to an adequate environment generate ‘illusory’ expectations, as the implementation and enforcement of this right is not evident? What is the experience in practice, inside and outside Europe?
This book is the written report of the exposé of Prof. Dr. Luc Lavrysen (University of Ghent, Judge in the Belgian Constitutional Court, President of EUFJE), Prof. Dr. H.F.M.W. van Rijswick (University of Utrecht), Ms. Rita Raum-Degrève (Chairman of EELA, Chairman of the Luxembourg Environmental Law Association), Prof. Dr. Branca Martins da Cruz(Lusíada University of Porto), Ms. Tonia Pediaditaki (Lawyer in Athens), Mr. Daniel Lawrence (Fresh- fields, Chairma, of the U.K. Environmental Law Association), Mr. Arlindo Daibert (Attorney of the City of Rio de Janeiro Attorney General’s Office) and Prof. Dr. Dinah Shelton (Georges Washington University), who talked about their experience having or not having constitutional environmental rights. The book also contains a transcription of the debate afterwards.
V.V.O.R. Report 2007/2
Constitutional rights to an ecologically balanced environment