Under A Market Logic, Even Pathogens Have Proud Owners

Exactly after four years of the Covid-19 hit the globe, WHO is ready with a draft negotiating text of the Pandemic Agreement with 'prevention, preparedness and response' as its purpose. An international law student would be surprised at how negotiators are able to produce a ready-made treaty text in such a short period, as it is expected to get finality or perish within months. More traditional treaties sometimes took decades to materialize since several philosophies used to vie for dominance which resulted in word-by-word negotiations. At present for those who matter in the world, there is only one philosophy of neo-liberalism. Then the only task is to make adjustments within that framework. Even there the inability to give and take results in inevitable break-downs.

Everything is a Product

In a consumer world everything from a process, your looks to integrity is saleable. Then there is no need to speak of other living and non-living resources. Combined with the product perception is the marketing of and profit from the product. In fact we should not lose focus of a duel between two philosophies in this context. What triggers innovation and individual, social and public action of entities? Is it the doing of an inquisitive mind with social commitment or allurement of profit alone? It runs through the debates on Common Heritage of Mankind (CHM) to Intellectual Property Rights. I still remember what late Prof R.P. Anand written on the pages of Indian Journal of International Law as the 'mutilation of an ideal' called CHM in the context of the 1994 Agreement Implementing the UNCLOSIII. For me three 'S's, survival, satisfaction and selfishness alone or in combination drive human actions. When survival question confronts you nothing else matters. Satisfaction is many fold; either selfless or selfish or in combination. It is the last 'S' of selfishness in the form of profit which lead the who and who of the world today. In a cyclical world philosophies are destined to shuffle.

Pathogen as a Product in the Draft

It should be in public memory that the then President Trump despised corona virus as 'chinese virus'with racial undertones. Even China was reluctant to take full responsibility as the Country of origin of the pathogen which is still an unresolved issue. So a tiny creature which was a villain not so long before is capable of getting a product status thanks to the negotiators. The draft defines 'pathogen with pandemic potential' as “any pathogen that has been identified to infect a human and that is: novel (not yet characterized) or known (including a variant of a known pathogen), potentially highly transmissible and /or highly virulent with the potential to cause a public health emergency of international concerns”. What is a public health emergency of international concern is still opaque. The yard sticks WHO uses under the International Health Regulations (IHL) are not clear about the degree of spread. Article 12 para 3 speaks about a Party who has access to a pathogen with pandemic potential and sharing of the pathogen genetic sequence with the WHO. And the sequence will sail through to the manufactures of therapeutics, vaccines or diagnostics with an electronic label of 'Pathogen Access and Benefit –Sharing System(PABS) biological material'.

But a theoretical confusion arises here. Article 3 reiterates sovereign right of States over their biological resources. Then article 12 para 12 states the draft treaty is consistent with the Nagoya Protocol to the Convention on Biological Diversity and PABS is applicable access and benefit-sharing system for biological materials and genetic sequence with pandemic potential. The theoretical confusion concerns as to whether the draft sees pathogen as a perilous entity capable of producing havoc or a useful biological resource for the country of origin or access. The Country of origin may not be the Country of access and both may not have the ability to sequences the genome or both may not have laboratories with safe international practices guarding against an escape of the pathogen. The negotiators, especially from the South, have seen an opportunity in crisis and hence the avatar of pathogen as a product and PABS an economic instrument to seek their legitimate share through WHO. The Nagoya Protocol has a functioning access and benefit-sharing system because it envisages a mutual contract between the donor and purchaser. It remains to be seen how the PABS pans out. If suppose US, China, EU or India are the Parties having the access to the biological material or sequence it would be more than unethical for the PABS to work in their favor. A workable way should be to go back to the developed, developing and least developed categorization and limit financial aid and capacity building initiatives to the least developed countries. From the Covid-19 experience it became clear that when a pandemic hits even the developed countries, it stays hit. After the Pandemic if a Country is continuing with the extra infrastructure and facilities, it is a foolish luxury. The international community and WHO on its behalf should ensure minimum facilities in the least developed countries. PABS should incentivize both the below margin countries to share data(developing countries may have the possibility of license agreements) and industry to give back. Sharing data on Pathogens is a question of survival. Satisfaction and selfishness can wait. Thus we could escape the ignominy of parading pathogens just as products and join the decolonization process in international public health law.

Renunciation as a Negotiation Technique

Along with the draft Pandemic Treaty the IHL are also undergoing a reform process. We have seen the ineffectiveness of preparedness and response. So more attention should be given to the prevention component. Viral threats loom large over the coming years. It is always better and effective to go to the roots and map the pathogens with pandemic potentials at the international level. Along with this it would be pertinent to revisit the reporting and other obligations under the old IHL. The Pandemic Treaty on the other hand stands at an equal chance of breaking down. Negotiators from the South should experiment the technique of renunciation an age old Indian habit in ascetic contexts. Group B believe that 'x' is essential for group A. But A knows that there are alternatives. Then A should renounce 'x' for the greater good of humanity. It is a trump card and a survival question.