The Human Rights Implications of Access to Genetic Resources and the Equitable Sharing of the Benefits Arising from their Utilization

Citation

Savaresi A (2009) The Human Rights Implications of Access to Genetic Resources and the Equitable Sharing of the Benefits Arising from their Utilization. In: Young T (ed.) Covering ABS : Papers and Studies Addressing the Need for Sectoral, Geographical, Legal and International Integration in the ABS Regime. Gland, Switzerland: IUCN, pp. 61-74. https://portals.iucn.org/library/efiles/documents/EPLP-067-5.pdf

Abstract
The present contribution aims to paint a picture of the human rights obligations that may be most relevant to the establishment of schemes of access to genetic resources and equitable sharing of the benefits arising from their utilization. Human rights have substantially contributed to shifting the focus of modern international law towards the pursuit of shared fundamental values, eroding States’ exclusive domain over their nationals. In doing so, human rights have gradually penetrated all areas of the law. This predicament applies also to the Convention on Biological Diversity (CBD), whose implementing measures need to comply with the human rights commitments undertaken by its Parties. At the global level, the most comprehensive catalogue of human rights is the International Bill of Rights. The Bill of Rights comprises three instruments – the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). While the legal significance of the Universal Declaration is controversial,the two Covenants are legally binding treaties, which have been ratified by the vast majority of States. Both the ICCPR and the ICESCR provide reporting duties and monitoring mechanisms. All human rights entail a set of obligations that may be distinguished in consideration of three elements: Respect – i.e. governments must refrain from interfering directly or indirectly with the enjoyment of human rights; Protect – i.e. governments have the duty to prevent third parties from interfering in any way with the enjoyment of human rights; and Fulfill – i.e. governments must adopt measures necessary to achieve the full realization of human rights.The two Covenants distinguish between civil and political rights, and economic and social rights. This separation was the result of a precise political choice. The drafters treated civil and political rights as urgent commitments in need of immediate enforcement, whereas economic, social and cultural rights were laid down as programmatic statements, unsuitable for direct enforcement. As a result, the ICCPR provides explicit obligations and the body in charge of monitoring its implementation (Human Rights Committee) may receive communications regarding human rights violation from both States and individuals. The ICESCR, instead, has a more hortatory tone, and the body in charge of monitoring its implementation, (Committee on Economic, Social and Cultural Rights), may not receive individual governcommunications. This categorization seems to establish a hierarchy between human rights objectives. Such interpretation has however been rejected by the UN General Assembly, which has on several occasions reiterated that human rights are ‘indivisible.’ On separate grounds, it is sometimes contended that human rights enjoy primacy over other international law commitments.This theory is highly controversial and its analysis exceeds the purpose of the present contribution. It is nevertheless undisputed that many States Parties to the CBD have also adhered to the Covenants and other human rights instruments. These instruments have in some respects the same relevance as the ones undertaken with the CBD. It is therefore crucial to discern the human rights that may affect ABS systems. The ones that are more likely to be of some effect in this sense are the rights that deal with natural resources, land and property. The following analysis will seek to give an overview of these entitlement issues, detailing aspects that may be more sensitive to the elaboration of ABS schemes.