[TDK] | Global talk | Navigating troubled waters beyond intellectual property: a tale of pathogen sharing during the COVID-19 pandemic and the impact of the Nagoya protocol
Navigating troubled waters beyond intellectual property: a tale of pathogen sharing during the COVID-19 pandemic and the impact of the Nagoya protocol
Diana María Lica
KU Leuven – Institute for Private International Law
Throughout the evolution of the global COVID-19 pandemic, much of the public attention has been turned towards timely delivery of vaccine doses, to the attached verbal and contractual arm-wrestling between governments and pharmaceutical companies, or yet to the debate on the feasibility of a waiver on related IP rights. However, another exchange of uttermost importance has been left somewhere out of the limelight: pathogen sharing.
As a matter of fact, sharing among laboratories of SARS-CoV-2 causing COVID-19 has been the first link within the chain of development of diagnostics, vaccines, and therapeutics. Despite its relevance in upstream research, pathogen sharing has been taken for granted in the backstage of “science happening”, this perhaps stemming from the understanding that pathogens fall within the category of “commons”.
However, a strict reading of the Convention on Biological Diversity (CBD) (1992) and the Nagoya Protocol to such Convention (NP) (2014) ̶ legal instruments seeking to counter the misappropriation of genetic resources of countries and associated traditional knowledge ̶ leads to pathogens generally falling under the umbrella of “genetic resources”. As such, they pertain to the country of origin, which must “consent” to these being accessed on “mutually agreed terms” covering “access and benefit-sharing” (ABS) arrangements to benefits issued from such utilization. In past epidemics ̶ H5N1 (2006), MERS-COV (2012)̶ Indonesia and Saudi Arabia instrumentalized and reframed CBD language to “legally” restrict access to such pathogens, in a narrative move qualified as viral sovereignty.
If the outbreak in China was not accompanied by any such sovereign claims, a recent WHO report on “The public health implications of the implementation of the Nagoya Protocol” (6/Jan/2021) underlined NP effects during the COVID-19 pandemic. The aim of this session is to discuss such implications, namely the NP acting like a double-edged sword: creating suitable frameworks for SARS-CoV-2 sharing but also considerable brakes; followed by a discussion on the operationalization of Article 8b NP (expeditious access to genetic resources in health emergencies).