Some nations have argued that the recent Nagoya Protocol of the Convention of Biological Diversity (CBD) includes pathogens. The inclusion of pathogens in the Nagoya Protocol could adversely affect the world’s ability to control outbreaks of infectious disease. The following reasons demonstrate why pathogens are not and should not be included in the Nagoya Protocol.
Contrary to the Mission of the CBD:
- The three main objectives of the CBD are;
- “The conservation of biological diversity,
- The sustainable use of the components of biological diversity, and
- The fair and equitable sharing of the benefits arising out of the utilization of genetic resources.”
- The objective for preventing pathogen-borne illness is to eliminate and not conserve the pathogen. Therefore, conserving and sustaining pathogens seems like a tenuous application in light of the first two objectives of the CBD.
- Some might argue that pathogens fall under the 3rd objective, addressed by the Nagoya Protocol. However, analyzing the 3rd objective requires consideration of the other two objectives. Benefit sharing is intrinsically linked to those genetic resources worthy of protection and sustainable use. The following points clarify why the Nagoya Protocol does not cover pathogens.
Nagoya Protocol Language
- Pathogens are specifically mentioned in Annex I, clause 16
“Mindful of the International Health Regulations (2005) of the World Health Organization and the importance of ensuring access to human pathogens for public health preparedness and response purposes.”
- The reference to the World Health Organization and the importance of access to pathogens indicates the intent that the WHO, not the CBD, is the place to address human pathogens.
- In fact, the clause reinforces the idea that access, not benefit, is paramount in an outbreak of infectious disease. The CBD recognizes that WHO has the appropriate level of technical expertise and experience to handle pathogen access issues.
- Some might argue Article 6(b) implies the inclusion of pathogens in the Protocol.
Parties must “pay due regard to cases of present or imminent emergencies that threaten or damage human, animal, or plant health, as determined nationally or internationally. Parties may take into consideration the need for expeditious access to genetic resources and expeditious fair and equitable sharing of benefits arising out of the use of such genetic resources, including access to affordable treatments by those in need, especially in developing countries.”
- If Article 6(b) were interpreted to include pathogens, the language “the need for expeditious access to genetic resources” in times of emergencies strongly argues for the circumvention or inapplicability of access and benefit sharing laws to pathogens.
Applying the Protocol to Pathogens is highly problematic
- Interpreting the Nagoya Protocol to include pathogens creates numerous practical and policy problems.
- Prior drafts both included and excluded pathogens in the Protocol indicating no agreement on the inclusion of pathogens. Including pathogens would be a disingenuous reading of the intent of the contracting parties.
- How do you identify the origin of a pathogen? Pathogens are not bound by geography, quickly spreading globally by infected persons traveling on airplanes or infected birds flying across borders. How can we identify who owns the next HIV clade, SARS virus, or the next variation of any pathogen?
- Infectious disease outbreaks require instantaneous action. Any delay caused by nations negotiating ‘fair’ prices for pathogens harms both the local and global population needing immediate protection.
- Including pathogens in an access and benefit sharing system rewards bad luck. The designers of the Nagoya Protocol sought to create a monetary incentive to conserve biodiversity and sustainability; not to create a system that allows nations to profit from misfortune.