[Ip-health] New ICTSD study: An International Legal Framework for the Sharing of Pathogens by F.Abbott

Ahmed Abdel Latif aabdellatif at ictsd.ch
Fri Oct 22 09:50:42 PDT 2010

 *An International Legal Framework

*for the Sharing of Pathogens: Issues and Challenges*

*** *by Frederick M. Abbott


As negotiations are under way in Nagoya on a new Access and Benefit-sharing
(ABS) Protocol to the Convention on Biological Diversity (CBD), the paper
provides groundbreaking analysis on the interface between the CBD ABS
negotiations, the World Health Organization (WHO) discussions relating to
pathogen materials and the WTO discussions on TRIPS and biodiversity. While
new rules related to pathogen materials sharing should most appropriately be
negotiated at the WHO because of the specific public health aspects
involved, there is a real risk that the result will be a two-tiered system
of access to pathogen materials: one addressing certain influenza viruses
under the auspices of the WHO and another addressing pathogen materials more
generally under the auspices of the ABS Protocol.

The author underlines that negotiators in the ABS Protocol forum and at the
WHO should focus attention on concrete ideas concerning how the two systems
are expected to operate simultaneously with respect to the same subject
matter as this does not appear to be a situation in which “constructive
ambiguity” will operate for the public benefit (See also the
Professor Abbott for the ICTSD Trade BioRes Review special issue on
Nagoya CBD meeting, entitled “Exception 2: Sharing Pathogens”).

More generally, the paper aims to achieve a better understanding of the
legal matters raised by sharing access to influenza viruses and vaccines and
other benefits, a pressing issue on the global health agenda whose
importance has dramatically increased in light of pandemic outbreaks in
recent years. Discussions on this issue at the WHO have faced many
challenges in balancing a number of different considerations and interests,
including development of drugs and vaccines and affordable access to them
for developing countries. As in other global discussions, intellectual
property has emerged as a particularly contentious issue.

The paper also examines relevant international norms and processes that
matter for ownership and control over pathogen materials. These include the
CBD, the WHO Constitution and the International Health Regulations, the WTO
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
and international human rights norms. Finally, the paper looks into complex
issues surrounding intellectual property rights (IPRs), particularly as they
relate to patents and pathogen materials.

For more information about ICTSD’s Programme on IPRs and Sustainable
Development visit our website at

ICTSD weclomes feedback and comments to this document. These can be
forwarded to Ahmed Abdel Latif, IP and Technology Programme Manager (
aabdellatif at ictsd.ch)

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