Fair and Equitable Benefit Sharing in International Law: A Critical Analysis

Yasangi Handunge LL
B (Hons) (Jaffna), LL.M (SAU/India) (Reading)

The need for a ‘fair and equitable benefit-sharing’ concept is pivotal in international law, acknowledging the absence of a clear consensus among states on how to share the benefits of natural resources without discrimination. This study aims to critically examine the application of fair and equitable benefit-sharing concerning natural resources across various international agreements within different legal regimes. The analysis evaluates the relevance of this concept in the international legal system and considers factors influencing its practical application. Special attention is dedicated to understanding how the concept is applied to natural resources within national jurisdictions and areas beyond national jurisdiction. The scope of the analysis encompasses key international agreements, including the Convention on Biological Diversity (CBD), the Nagoya Protocol, the supplementary agreement to the CBD, the Outer Space Treaty, the Moon Agreement, the United Nations Convention on the Law of the Sea, and the High Seas Treaty. Existing research has been conducted to interpret the meaning of the legal concept of fair and equitable benefit sharing, basing its analysis on philosophical reflection and its connection with human rights law. However, it has not comprehensively addressed the application of this concept within the treaties mentioned above, particularly concerning the decision-making process and dispute settlement.

The study employs a doctrinal research approach to compare the application of the fair and equitable benefit-sharing concept under these international agreements. It concludes by highlighting the impact of power dynamics, economic imbalances among states, divergent January 2024 prioritization of goals between developed and developing countries, and the commercial and non-commercial utilization of natural resources by different states. The research emphasizes how these factors contribute to inconsistencies in applying fair and equitable benefit-sharing across different treaties. Furthermore, it underscores the implications of these inconsistencies for enforcing existing treaties and future treaty negotiations. In essence, this research contributes to a comprehensive understanding of the necessity of fair and equitable benefit-sharing in international treaties to distribute natural resources among countries without discrimination.