International law and practice developed specific instruments to safeguard indigenous peoples’ rights in conditions of commercial exploitation on the territories they have traditionally occupied: impact assessment, free prior and informed consent and benefit-sharing. The most controversial one among these mechanisms is benefit-sharing. While its concept was substantially developed in the context of the Convention on Biological Diversity and Nagoya Protocol as the fair and equitable sharing of the benefits arising out of the utilization of genetic resources [1], it addresses wide range of issues in the context of natural resources in general and environmental protection.
Despite being frequently utilized in the international lexicon benefit-sharing is still an ambiguous concept, which lacks a universal understanding [2]. A number of researchers in philosophy and ethics attempted to explain its content connecting it to justice [3], discovering the meaning of “fair and equitable” [4] and pointing to its changing nature [5].
Arguably the majority of legal studies conducted on benefit-sharing tends to focus on access to genetic resources and sharing of benefits arising from their utilization [6], but it was also considered in relation to natural resources [7] and in the context of the Law of the Sea [8]. The most extensive legal study on benefit-sharing has been carried out at the University of Strathclyde. The multi-disciplinary team has elaborated on history, content and status of benefit-sharing in international law based on the premises of cross-fertilization of international biodiversity law and international human rights law. Thus, it was concluded that benefit-sharing is a multi-dimensional concept encompassing, on the one hand, inter-State (benefit-sharing among States), intra-State (benefit-sharing within States between governments and communities) and transnational dimensions (benefit-sharing between communities and private companies) [9] and, on the other hand, procedural (fairness) and substantive (equity) dimensions [10]. Whereas its status in general international law as a customary norm, a safeguard or a component of human rights is dependent on whether it has emerged as inter-state or intra-state obligation, further inquiries are required [11]. The main features of benefit-sharing were identified in a partnership building and allocation of economic and non-economic benefits among state and non-state actors, including the vulnerable [12]. Therefore, instead of focusing on monetary (compensatory) nature of benefit-sharing, it is suggested to view the concept more broadly as a tool to empower marginalized communities, including indigenous peoples. In the same vein, the UN Special Rapporteur Anaya distinguished compensation and benefit-sharing and emphasized the capacity-building priority (A/HRC/66/288, para. 102). For example, it means taking into account the beneficiaries’ needs, values and priorities and also good faith consultations [13].
1. Morgera, Elisa. “An International Legal Concept of Fair and Equitable Benefit-Sharing” Edinburgh School of Law Research Paper No. 2015/20. (2015). Available at SSRN: or
2. Morgera, Elisa. “Under the Radar: The Role of Fair and Equitable Benefit-sharing in Protecting and Realizing Human Rights Connected to Natural Resources”. BENELEX Working Paper N. 10 (2018). Available at SSRN: or
3. Schroeder, Doris. “Benefit sharing: it's time for a definition”. Journal of Medical Ethics 33 (4):205-209 (2007)
4. De Jonge, Bram. “What is Fair and Equitable Benefit-sharing?”. Journal of Agricultural and Environmental Ethics, Vol. 24, Issue 2 (2011): 127–146.
5. Dauda, Bege and Kris Dierickx. “Benefit sharing: an exploration on the contextual discourse of a changing concept”. BMC Medical Ethics, 14:36 (2013).
6. Savaresi, Annalisa. “Doing the Right Thing with Traditional Knowledge in International Law: Lessons for the Climate Regime”. BENELEX Working Paper N. 8; Edinburgh School of Law Research Paper No. 2016/16. (2016). Available at SSRN: or
7. Morgera, Elisa. “The need for an international legal concept of fair and equitable benefit-sharing”. European Journal of International Law, 27 (2). (2016): 353-383
8. Cabrera Medaglia, Jorge and Frederic Perron-Welch. “The benefit-sharing principle in international Law”. Journal of Intellectual Property Law & Practice, Vol. 14, No. 1 (2019): 62-76
9. Morgera, Elisa. “Conceptualizing Benefit-Sharing as the Pursuit of Equity in Addressing Global Environmental Challenges”. BENELEX Working Paper 1; Edinburgh School of Law Research Paper No. 2014/41. (2014). Available at SSRN: or
10. Morgera, Elisa. Op. cit. (2016)
11. Morgera, Elisa. “Fair and Equitable Benefit-Sharing: History, Normative Content and Status in International Law”. 'Benefit-sharing’ in E Orlando and L Krämer (eds), Encyclopedia of Environmental Law: Principles of Environmental Law (2017). Available at SSRN: or
12. Morgera, Elisa. Op. cit. (2016)
13. Morgera, Elisa. Op. cit. (2017)