Tag Archives: indigenous peoples

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing (L. Parks and E. Morgera)

Authors

Louisa Parks and Elisa Morgera

Keywords

benefit-sharing, international law, environmental law, human rights law, human rights, oceans law, regulation, national law, regional law, indigenous peoples, local communities, norm diffusion, scholarship, conservation, sustainability, natural resources, power asymmetry

Abstract

No systematic study discusses the evolution of fair and equitable benefit-sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit-sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit-sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

Citation

(2015) 24:3 Review of European, Comparative and International Environmental Law 353-367

Paper

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing

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Justice, Equity and Benefit-Sharing under the Nagoya Protocol to the Convention on Biological Diversity (E. Morgera)

Author

Elisa Morgera

Keywords

benefit-sharing, biodiversity, equity, justice, Nagoya Protocol, mutual supportiveness, indigenous peoples

Abstract

This article attempts to bridge the multi-disciplinary debate on environmental justice and the traditional international legal debate on equity with a view to analysing the legal concept of fair and equitable benefit-sharing in international law. To that end, the article uses the Nagoya Protocol to the Convention on Biological Diversity as a testing ground for: i) unpacking different notions of justice that may be pursued through fair and equitable benefit-sharing from access to genetic resources and the use of associated traditional knowledge, and ii) relating different notions of justice to the different functions that equity plays in international law. The aim is to test the potential wider application, in other areas of international law that refer to benefit-sharing, of linking a pluralist notion of environmental justice to different functions of equity. It is argued that this helps systematically unveil implicit legal design choices in relation to the pursuit of justice through international law-making, and interpret international legal instruments in ways that can contribute to negotiate concrete understandings of justice on a case-by-case basis.

Citation

Edinburgh School of Law Research Paper No. 2015/16

Paper

Justice, Equity and Benefit-Sharing under the Nagoya Protocol to the Convention on Biological Diversity

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Justice, Equity and Benefit-Sharing Under the Nagoya Protocol to the Convention on Biological Diversity (E. Morgera)

Author(s)

Elisa Morgera

Keywords

benefit-sharing, biodiversity, equity, justice, Nagoya Protocol, mutual supportiveness, indigenous peoples

Abstract

This article attempts to bridge the multi-disciplinary debate on environmental justice and the traditional international legal debate on equity with a view to analysing the legal concept of fair and equitable benefit-sharing in international law. To that end, the article uses the Nagoya Protocol to the Convention on Biological Diversity as a testing ground for: i) unpacking different notions of justice that may be pursued through fair and equitable benefit-sharing from access to genetic resources and the use of associated traditional knowledge, and ii) relating different notions of justice to the different functions that equity plays in international law. The aim is to test the potential wider application, in other areas of international law that refer to benefit-sharing, of linking a pluralist notion of environmental justice to different functions of equity. It is argued that this helps systematically unveil implicit legal design choices in relation to the pursuit of justice through international law-making, and interpret international legal instruments in ways that can contribute to negotiate concrete understandings of justice on a case-by-case basis.

Citation

(2015) 24 Italian Yearbook of International Law pp. 113 – 141

Paper

Justice, Equity and Benefit-Sharing Under the Nagoya Protocol to the Convention on Biological Diversity

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Rights with limits: biocultural rights – between self-determination and conservation of the environment (Sajeva)

Author

Guilia Sajeva

Keywords

Biocultural rights, conservation of the environment, indigenous peoples, local communities, stewardship

Abstract

Kabir Bavikatte has recently argued that a new ‘basket’ of group rights is emerging from the interpretation of multilateral environmental agreements, domestic law and case law, and from shifts in the development discourse and the struggles of communities. He refers to this new set of rights as ‘biocultural rights’ and defines them as being all the rights of indigenous peoples and local communities required to secure their stewardship role over their lands and waters. Biocultural rights build on two foundations: the self-determination and cultural diversity of indigenous peoples and local communities, and the conservation of the environment. This article suggests that the second foundation is what makes biocultural rights potentially more appealing than other human rights but that it is also the reason for their sui generis potential. Unlike human rights generally, biocultural rights seem to be aimed at protecting not only the interests of their right-holders, indigenous peoples and local communities, but also seem to protect a general interest of humankind in the conservation of the environment through the impositions of stewardship duties on rights-holders. Therefore, it is suggested that while biocultural rights provide a promising instrument for the promotion and protection of the interests of indigenous peoples and local communities, they also require such peoples and communities to be conscious of the fact that they, as biocultural rights-holders, take on a potentially inequitable duty towards environmental sustainability that limits their self-determination interests. The article explores some of the conceptual tensions emerging from this possibility and from the fact that indigenous peoples and local communities are presented as co-referents for the same umbrella of rights.

Citation

(2015) 1 Journal of Human Rights and the Environment 30-54

Publication

Rights with limits: biocultural rights – between self-determination and conservation of the environment

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International Human Rights Law, the Environment and Indigenous Peoples (E. A. Daes)

Author(s)

Erica-Irene Daes

Keywords

international human rights law, environment, indigenous peoples, ecology, environmental protection, international co-operation

Abstract

In the contemporary world human beings are in a position to influence the world ecological system as a whole in such a way as to endanger the longterm survival of all plant and animal species and even humankind itself. Hunger, poverty and disease – a cause and effect of global environmental degradation – constitute fundamental reasons why the international community has expressed serious concern at the importance of environmental protection and the creation of a new era of international co-operation, the new global partnership, for the survival of the human person. To this end many endeavors, activities and measures have been undertaken by the world community. Some of them are briefly presented in this paper.

Citation

Morten Bergsmo ed., Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide (Marinus Nijhoff Publishers, 2003) 571

Paper

‘International Human Rights Law, the Environment and Indigenous
Peoples’, in Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbjørn Eide

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