On Tuesday 12 June, GCRI hosted an online lecture by Catherine Rhodes entitled ‘Sovereign Wrongs: Ethics in the Governance of Pathogenic Genetic Resources’. Rhodes is a Research Fellow at the University of Manchester’s Institute for Science, Ethics and Innovation, where she researches how science can address humanity’s major challenges, with a focus on the interplay between science and international processes. Her lecture is based on a paper she published of the same name [1].
Rhodes’s lecture raised the question of who owns ‘pathogenic genetic resources’, meaning the genetic code of pathogens. Do you have property rights over the genetic code of an influenza virus that invades your respiratory system? Does the country that you reside in have a sovereign right to the virus?
Rhodes suggests that under the principle of common heritage of mankind (or ‘humankind’), no country or individual therein should have property rights to pathogenic genetic resources. Common heritage is an international law principle positing that some land or resources belong to all of humanity, so they should be used for the benefit of everyone. Originally, the concept applied to colossal landmasses, like the deep seabed or the moon, but soon it was expanded to cover something incredibly small, perhaps even intangible: genetics. Says a 1983 resolution from the Food and Agricultural Organization: “plant genetic resources are a heritage of mankind to be preserved, and to be freely available for use, for the benefit of present and future generations.”[2]
There is an ongoing debate about to what extent common heritage of mankind should apply to genetic resources. Developing countries feel that developed countries, especially their pharmaceutical companies, exploit local and indigenous knowledge of plants to make highly lucrative products without sharing profits. And developed countries want access to genetic resources to create useful products protected under intellectual property laws. The 1992 Convention on Biological Diversity (CBD) attempts to satisfy both sides by establishing that genetic resources should be accessible by everyone in return for a fair share of the benefits [3]. Despite this attempted pragmatism, the effect of the CBD is clear: genetic resources are a country’s sovereign property.
In 2006 and 2007, during the outbreak of the H5N1 ‘bird flu’ virus, Indonesia claimed sovereign rights over the bird flu’s genetic materials under the authority of the CBD. Indonesia also withdrew from the Global Influenza Surveillance Network (now the Global Influenza Surveillance and Response System), a nonbinding agreement to send influenza samples to international centers for analysis, which speeds up vaccine development. Indonesia believed that developed countries and pharmaceutical companies were patenting vaccines and making them unaffordable, leaving developing countries unfairly vulnerable to influenza outbreaks. The bird flu’s genetic resources were a bargaining chip to get more vaccines. Legally, said Rhodes, Indonesia’s claim was dubious: the CBD might not apply to pathogens, and withholding pathogenic genetic resources could violate the World Health Organization’s International Health Regulations. But the fact remained that this conflict was wasting valuable time during a public health crisis.
Indonesia’s actions made strategic sense to some of the online lecture participants. If they could force vaccines to be redistributed to poorer countries, then they were simply acting in their self-interest, even if they risked worsening the H1N1 outbreak. A counterpoint is that while bargaining might be in Indonesia’s short-term interest, throwing a wrench into vaccine development would hurt them in the long term. Other participants wondered if claiming sovereignty rather than taking preventative actions exposed Indonesia to liability claims. Probably not under current law, thought Arden Rowell, a law professor at the University of Illinois, pointing out that countries do not face liability for invasive species that originate from their territory, which a Washington Post report estimated to cost the United States $120 billion in annual environmental losses and damages.
Rhodes continued by contending that the international community should have access to pathogenic genetic resources whether or not there is a profit-sharing arrangement with the country in possession of a virus (in jargon, they should ‘delink access and benefit-sharing’). The primary reason is that during an influenza outbreak, negotiations cause delays, which can result in more deaths. Lecture participants agreed that mismanaging an outbreak could even allow a virus to spread or mutate such that an otherwise preventable global catastrophe occurs. This brings up the important ethical question of how to balance property rights and sovereignty against global catastrophic risks.
Rhodes suggested that by applying the principles of common heritage of mankind, pathogenic genetic resources could potentially be accessible by any country, subject to international management, and used for the benefit of the entire international community. Common heritage of mankind concepts may also require vaccines to be shared in a more equitable manner. One participant commented that there could be a ‘free rider problem’, meaning some countries would want an equitable cut of the vaccines without giving anything in return. While Rhodes’s project was not focused on solving this problem, she emphasized that global health should be the ultimate goal regardless of free riders.
Online lecture participants contributed a few other ideas about how to improve vaccine development from pathogenic genetic resources. One participant thought that rather than discussing hypothetical principles, we should come up with specific processes and incentives to reward those who contribute pathogenic genetic resources to an international registry. Another idea was to set up a central benefit-sharing mechanism that allows actors to pay money in exchange for access to pathogenic genetic resources, which could streamline access. Whatever approach is taken, preventing a global catastrophe should be a priority for mankind, and so the international community should take the appropriate measures to contain future influenza pandemics.
Here is the full abstract of the talk:
This presentation examines the implications of a new international approach to the governance of viruses such as H5N1 as a form of genetic resource, arguing that the approach is flawed and creates more problems than it solves. In opposition to this approach (which centres on state sovereign rights and access and benefit-sharing based on those rights), I argue for a modified common heritage approach to governance of pathogenic genetic resources and a de-linking of access and benefit-sharing requirements.
The presentation was hosted online via Skype, with the presentation hosted on Prezi. The audience included Megan Palmer, a research fellow at UC Berkeley and Deputy Practices Director of Synthetic Biology Engineering Research Center (SynBERC); Miles Brundage, PhD student in Human and Social Dimensions of Science and Technology at Arizona State University; Aladdin Diakun, an MA Candidate at the Balsillie School of International Affairs who specializes in 21st century crises, and GCRI’s Arden Rowell, Grant Wilson, and Seth Baum.
[1] Rhodes, C. (2012). “Sovereign wrongs: Ethics in the governance of pathogenic genetic resources” Ethics in Biology, Engineering and Medicine, 3(1-3) 97-114. http://www.dl.begellhouse.com/journals/6ed509641f7324e6,51a3bb12507ccd33,7ca82e547fe03fc4.html
[2] FAO Conference Resolution 8/83, “International Undertaking on Plant Genetic Resources” (adopted November 23, 1983). http://apps3.fao.org/wiews/docs/Resolution_8_83.pdf
[3] The Convention on Biological Diversity uses the phrasing ‘common concern of mankind’ to avoid the potential legal implications associated with the traditional ‘common heritage of mankind’ usage.
