One Health and Pathogen Sharing

doi:10.1017/9781009653732.006

4 - One Health and Pathogen Sharing

What’s Missing in the Pandemic Treaty’s Proposed Pathogen Access and Benefit-Sharing (PABS) System?

from Part I - One Health in Existing Legal Structures

Published online by Cambridge University Press: 25 September 2025

Michelle Rourke

Edited by

Katie Woolaston and

Jane Kotzmann

Show author details

Katie Woolaston: Affiliation:
Griffith University, Queensland
Jane Kotzmann: Affiliation:
Deakin University, Victoria

Book contents

Summary

In the wake of the COVID-19 pandemic, member states of the World Health Organisation (WHO) agreed to ‘draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response’ (Pandemic Treaty).

Proposals for a Pathogen Access and Benefit-Sharing (PABS) System were included from the earliest drafts of the Pandemic Treaty. Access and Benefit-Sharing (ABS) is a transactional mechanism with its origins in international environmental law, where access to genetic resources for use in research and development is provided in exchange for a share of the benefits associated with their use. The purpose is to generate benefits that can be channelled into environmental conservation and sustainable use activities in countries where the genetic resources originate.

The PABS System could be a mechanism for incorporating One Health considerations into the Pandemic Treaty, but this will depend on its design and implementation. This chapter analyses the proposed PABS System in the Pandemic Treaty negotiating texts to determine whether it constitutes a genuine attempt to apply a One Health approach to pathogen ABS.

Keywords

World Health Organization Pandemic Treaty pathogens Access and Benefit Sharing Pandemic Influenza Preparedness Framework Indigenous Knowledges legal regime

Information

Type: Chapter
Information: The Cambridge Handbook of One Health and the Law
Existing Frameworks, Intersections and Future Pathways
, pp. 40 - 54

DOI: https://doi.org/10.1017/9781009653732.006 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2025

4 One Health and Pathogen Sharing What’s Missing in the Pandemic Treaty’s Proposed Pathogen Access and Benefit-Sharing (PABS) System?

4.1 Introduction: Pathogen Access and Benefit-Sharing in the Pandemic Treaty Negotiations

The public health response to the COVID-19 pandemic demonstrated the importance of physical SARS-CoV-2 samples for the development and validation of diagnostic tests and vaccines. Genetic sequence data associated with those physical samples were used to monitor the spread of the virus around the globe and the emergence of new variants of concern. For more than a decade, the World Health Organisation (WHO), along with other United Nations (UN) bodies, has recognised the sovereign rights of states over their pathogen samples and their right to regulate such samples as they deem appropriate.Footnote ¹ Most countries shared their SARS-CoV-2 samples with the international scientific community, and the associated genetic sequence data was regularly published on publicly accessible databases.Footnote ² Throughout the pandemic, however, there was an ongoing concern that countries would start to restrict access to these vital resources,Footnote ³ in accordance with their sovereign rights under international law.

In December 2021, two years into the COVID-19 pandemic, a Special Session of the World Health Assembly (WHA) agreed to ‘draft and negotiate a WHO convention, agreement or other international instrument on pandemic prevention, preparedness and response’ (referred to by some as the ‘Pandemic Treaty’) under the Constitution of the World Health Organisation 1948.Footnote ⁴ The original plan was for an Intergovernmental Negotiating Body (INB) to present a consensus text for the Pandemic Treaty by the Seventy-seventh WHA in May 2024. The INB process to negotiate a new Pandemic Treaty was occurring in parallel with the negotiations to amend the text of the International Health Regulations 2005, with considerable crossover in scope between the two agreements. At the Seventy-seventh WHA, member states adopted the amendments to the International Health Regulations 2005,Footnote ⁵ but could not come to a consensus on the text of the Pandemic Treaty. Instead, the INB presented a draft text ‘reflecting progress up to Friday 24 May’ 2024,Footnote ⁶ and the mandate of the INB was extended with a requirement to submit the outcome of this additional negotiation period to the Seventy-eighth WHA in May 2025 (or earlier if possible).Footnote ⁷

Article 12 of the draft text outlines a pathogen surveillance system: the ‘WHO Pathogen Access and Benefit-Sharing System (WHO PABS System)’ to ensure rapid access to pathogen samples and associated genetic sequence data, and the fair and equitable sharing of related pandemic products, such as vaccines, diagnostics, and therapeutics.Footnote ⁸ Access and benefit-sharing (ABS) has been a core component of each (publicly available) iteration of the draft Pandemic Treaty.Footnote ⁹ The PABS System, as currently proposed, would require parties to share samples of pathogens with pandemic potential,Footnote ¹⁰ (PABS Materials) with WHO-authorised laboratories.Footnote ¹¹ A ‘pathogen with pandemic potential’ is defined by the draft text as ‘any pathogen that has been identified to infect a human and that is novel’ with the ‘potential to cause a public health emergency of international concern or pandemic emergency’.Footnote ¹² The parties to the Pandemic Treaty would also be required to upload the genetic sequence of such pathogens to a relevant sequence database.Footnote ¹³ The WHO PABS System could then forward on PABS Materials to third-party recipients, such as pharmaceutical companies, for use in the development and manufacture of various pandemic-related products (e.g. diagnostics, medicines, vaccines) under the terms of a yet-to-be-negotiated legally-binding contract.Footnote ¹⁴ The contract forms a private agreement between the WHO and the third-party recipient of PABS Materials, which would require the recipient to make contributions to the PABS System. This could be in the form of monetary benefits (e.g. annual monetary contributions to the WHO)Footnote ¹⁵ or non-monetary benefits according to the nature and capabilities of the recipient (e.g. shared royalties, diagnostic kits, or vaccine doses)Footnote ¹⁶ that the WHO will allocate to WHO Member States during a pandemic ‘on the basis of public health risk and need’.Footnote ¹⁷

This is a proposed multilateral ABS system with providers and users of PABS Materials engaging the WHO as a middleman. In short, the PABS System outlined in the Pandemic Treaty is designed to create obligations for member states to share their pathogen samples and associated genetic sequence data with the WHO. The WHO will then share the samples with third parties who can use the samples and associated data to generate pandemic-related products. Contracts will be signed between the WHO and the third parties to ensure that a portion of those products (or other benefits) will be contributed to the PABS System for the WHO to distribute to member states on the basis of public health risks and needs.

Another recurring feature through each of the Pandemic Treaty drafts is the concept of One Health. In the negotiating text presented to the WHA in May 2024, Article 5 asks parties to ‘promote a One Health approach for pandemic prevention, preparedness and response … that is coherent, integrated, coordinated and collaborative among all relevant organizations, sectors and actors’.Footnote ¹⁸ In a previous iteration of the Pandemic Treaty’s draft text, there is even a provision connecting the PABS System to the One Health concept:

The Parties shall promote and enhance synergies between multisectoral and transdisciplinary collaboration at the national level and cooperation at the international level, in order to identify and conduct risk assessments at the interface between human, animal and environment ecosystems, while recognizing their interdependence, and with applicable sharing of the benefits, per the terms of Article 12 [Access and Benefit-Sharing] herein.Footnote ¹⁹

The inclusion of the One Health principle since the very beginning of the INB’s deliberations, and its explicit connection to the PABS System in some iterations of the negotiating texts, makes the fact that the scope of the proposed PABS System is limited to human pathogens with pandemic potential so utterly baffling. This is not an oversight: the earliest publicly available draft of the Pandemic Treaty also contains a version of the PABS System that only covers human pathogens.Footnote ²⁰ The baffling part is that the majority of emerging infectious disease outbreaks in humans originate in animals.Footnote ²¹ By only including human samples, the PABS System is arbitrarily limiting itself to detecting pathogens that have already spilled over into humans from animals. It fails to consider that it might be possible (and desirable) to detect animal pathogens before a spillover event takes place. Any international system for pathogen ABS that does not include animal and environmental samples is destined to fall short of any mission to prevent epidemics and pandemics, will likely become outdated very quickly, and it certainly cannot be said to be incorporating the One Health principle.

This chapter will examine how the PABS System outlined in the Pandemic Treaty could be improved if it genuinely applied the One Health principle to policies on accessing pathogen samples and associated genetic sequence data for use in research and development (R&D),Footnote ²² and the fair and equitable sharing of benefits associated with that use. It will start by providing a brief background on the origins of the ABS concept from environmental law. It will then demonstrate how the PABS System has relied on the WHO’s Pandemic Influenza Preparedness Framework (PIP Framework, 2011) as a model for pathogen ABS, replicating not only its strengths but also its weaknesses. The remainder of the chapter will analyse how there are clear synergies between One Health and the original intent of the ABS concept, and how the thoughtful application of the One Health framework could result in a more robust and effective multilateral pathogen ABS system, both now and into the future.

4.2 Background: What Is ABS and Why Is It in the Pandemic Treaty?

4.2.1 The Convention on Biological Diversity

Access and Benefit-Sharing is a policy mechanism that was developed for the United Nations Environment Programme’s (UNEP’s) Convention on Biological Diversity (CBD) 1992. This binding treaty has 196 contracting parties (with the notable exception of the United States of America) and has three key objectives: ‘[1] the conservation of biological diversity, [2] the sustainable use of its components and [3] the fair and equitable sharing of the benefits arising out of the utilization of genetic resources’.Footnote ²³ The third objective is elaborated in Article 15 of the CBD. It recognises that countries have sovereign rights over their genetic resources and that they can regulate access through national legislation.Footnote ²⁴ It further states that potential users of genetic resources in R&D must obtain the prior informed consent of the provider country,Footnote ²⁵ and that access and use must be on mutually agreed terms,Footnote ²⁶ which can include the sharing of associated benefits (be they monetary or non-monetary benefits).Footnote ²⁷ This is the policy mechanism abbreviated as ABS. It was devised to ensure provider countries could obtain a share of the benefits associated with R&D on their sovereign genetic resources, to put towards achieving the environmental conservation and sustainable development objectives of the CBD.Footnote ²⁸

The ABS mechanism in the CBD applies to ‘genetic resources’, which are defined as ‘genetic material … of plant, animal, microbial, or other origin’ embodying ‘actual or potential value’.Footnote ²⁹ Despite the scope of the term ‘genetic resources’ specifically including microbes, pathogenic microbes were not initially considered an obvious inclusion within the scope of the CBD, particularly in light of its status as an environmental conservation treaty.Footnote ³⁰ Pathogens are not the sort of biodiversity people think to conserve. Rather, ‘the strategy is to contain and ultimately eradicate’ them.Footnote ³¹ But by the time the Conference of the Parties (COP) to the CBD convened in 2010 to adopt the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (Nagoya Protocol), international discussions under the auspices of the WHO had made it clear that pathogens are indeed genetic resources that are within the scope of the CBD’s ABS provisions.Footnote ³² This ‘means that the country from which a virus sample was isolated has the sovereign authority to determine how and by whom that sample is utilized’,Footnote ³³ and that prior informed consent and mutually agreed terms need to be negotiated on a case-by-case basis, bilaterally between the provider party and the user party. Prior to this, pathogen samples had largely been shared without regard to ABS laws.

The Nagoya Protocol created further ABS requirements for users of Traditional Knowledge associated with genetic resources held by Indigenous peoples and local communities.Footnote ³⁴ It also recognised that multilateral ABS models may be more appropriate for certain types of genetic resources,Footnote ³⁵ and stated that specialised (multilateral) international ABS instruments could be created for specific sets of genetic resources and could bypass the default ABS mechanism, so long as the new instrument was consistent with the objectives of the CBD and Nagoya Protocol.Footnote ³⁶

The Nagoya Protocol also identifies a ‘special consideration’ related to pathogens, stating that parties should ensure expeditious ABS in ‘cases of present or imminent emergencies that threaten or damage human, animal or plant health, as determined nationally or internationally’.Footnote ³⁷ This special consideration for expeditious ABS during health emergencies was adopted ‘as a weak and perhaps hasty solution’ to (at the time) the new problem of pathogens technically falling within the scope of the international ABS regime.Footnote ³⁸ This provision of the Nagoya Protocol strengthened the argument that pathogens were indeed sovereign genetic resources under the CBD and Nagoya Protocol and were therefore subject to the same ABS rules as other genetic resources.

4.2.2 The WHO’s PIP Framework

The WHO negotiations that, in part, led to the special consideration for health emergencies in the Nagoya Protocol were precipitated by the actions of Indonesia in 2006/2007. Simply put, countries around the world (including Indonesia) had been sending their influenza virus samples to the WHO’s Global Influenza Surveillance Network (GISN) without formal conditions since the Network’s inception in the 1950s. After the adoption of the CBD, the transfer of virus samples to the GISN continued without regard to ABS laws. During an intense outbreak of H5N1 avian influenza, Indonesia decided they would no longer send their sovereign genetic resources (influenza viruses) to the WHO’s GISN unless they could obtain a fair share of the benefits that are generated from the use of their virus samples, namely vaccines.Footnote ³⁹ This attracted a great deal of criticism at the time, and even now the exercise of ‘viral sovereignty’ is viewed as a ‘desire to gatekeep important biological specimens’ with potentially disastrous consequences.Footnote ⁴⁰ But this misses the larger point about distributional equity that Indonesia was making at the time.

The open sharing of influenza viruses, most often originating in low and middle-income countries, directly led to the accrual of specific benefits (like vaccine doses and profits) to high-income countries. Therefore, the provision of these genetic resources (influenza viruses) to the WHO was not apolitical.Footnote ⁴¹ What high-income countries and the WHO’s GISN treated as global public goods and what they considered private goods was entirely political.Footnote ⁴² Life-saving medicines, which require R&D, specialised personnel, laboratory and distribution infrastructures, were considered private goods (belonging to pharmaceutical companies) while pathogen samples, which require clinical and/or laboratory space, equipment, specialised personnel and other resources to collect (and can sometimes even cost lives), were considered a public good. As the technology currently stands, the pathogen samples themselves form an essential input to the value chain that generates privatised profits for pharmaceutical companies. So, part of the point is: why does an essential raw material with undeniable use value not also have a market value?

This situation was basically replicating the old colonial relations between the Global North and the Global South, where the Global South ‘had been reduced to being providers of raw materials and consumers of manufactured goods produced in Europe and the United States’.Footnote ⁴³ Even when pathogens are used for non-commercial purposes (epidemiological studies or academic research) the benefits often accrue to scientists in high-income countries (in the form of publications, professional recognition, and enhanced opportunities), not to those people in low and middle-income countries for whom the costs of collecting the pathogen samples were often considerable. Thus, we see how Open Science, open data and open access to samples, while often claiming to benefit all of humanity, does not benefit all alike. Scientists and companies in high-income countries are better positioned to take advantage of this openness to capture (privatise) the benefits of public goods. This action by Indonesia, supported by other low and middle-income countries, meant that pathogens were finally recognised as genetic resources under the CBD and were therefore subject to domestic ABS rules.

In 2011, Member States of the WHO adopted the PIP Framework which, in line with the CBD, recognised the sovereign rights of states over their genetic resources and created ABS provisions that would guide the transfer of influenza viruses through the GISN, now renamed the WHO’s Global Influenza Surveillance and Response System (GISRS). As the PIP Framework only applies to influenza viruses with human pandemic potential, this means that every other human pathogen (including seasonal influenza viruses) remains under the remit of the CBD and Nagoya Protocol’s ABS framework, which defaults to bilateral ABS agreements if a multilateral ABS arrangement is not already in place.

The WHO’s 2016 Review of the PIP Framework stated that ‘The PIP Framework is a foundational model of reciprocity for global public health that could be applied to other pathogens’,Footnote ⁴⁴ but it also warned that while the principles of ABS could be applied to other pathogens, ‘using the PIP Framework as a template is likely to present significant implementational and operational challenges’.Footnote ⁴⁵ This is the seed of the idea for the PABS System that was proposed during the Pandemic Treaty negotiations, which borrows heavily from the PIP Framework as a template.Footnote ⁴⁶

4.3 The PABS System: Repeating the Mistakes of the PIP Framework

The PIP Framework limits its scope to ‘the sharing of H5N1 and other influenza viruses with human pandemic potential’.Footnote ⁴⁷ Influenza viruses are notorious for infecting mammals and birds, particularly pigs and chickens, and for readily spreading via direct contact with an infected animal or indirect contact with contaminated environments. Influenza viruses can spread vast distances in wild bird populations, and highly pathogenic avian influenza viruses are known to frequently spill over into human hosts.Footnote ⁴⁸

The animal influenza network, OFFLU,Footnote ⁴⁹ is run in partnership between the World Organisation for Animal Health (WOAH) and the Food and Agriculture Organization (FAO) of the UN. It runs in parallel with the WHO’s Global Influenza Surveillance and Response System (GISRS). The two networks exchange information, but the samples themselves stay within their own networks. The samples that countries provide to GISRS are shared under the ABS terms outlined in the PIP Framework, but animal influenza viruses are shared without regard to this multilateral benefit-sharing arrangement. This means that for the purposes of ABS, influenza viruses from animal hosts remain under the remit of the CBD and Nagoya Protocol, which favour bilateral ABS agreements between provider and user parties on a case-by-case basis.

Not only does treating animal samples separately from human samples fragment the ABS legal landscape, it also provides opportunities for users to avoid their benefit-sharing obligations by obtaining similar samples outside of the defined ABS terms of the multilateral system. It also creates an artificial distinction between influenza host species (remembering that humans are part of the animal kingdom, and are not that different from other influenza hosts, at least not from the perspective of the virus). Having separate ABS rules for the influenza viruses depending on whether they were isolated from human or animal hosts erects categorical barriers where the whole idea of the One Health concept is to remove such barriers and deal with health threats more holistically.

Despite being urged to take a more critical look at the PIP Framework,Footnote ⁵⁰ and to learn from its mistakes,Footnote ⁵¹ the PABS System proposed in the Pandemic Treaty negotiations has copied many of them. Limiting the scope of the PABS System to pathogens with human pandemic potential is just one such mistake that indicates that the One Health concept has not been seriously considered or applied for pathogen ABS under the Pandemic Treaty.

4.4 A Higher Authority: Including the Rest of the One Health Quadripartite

Given the PIP Framework was adopted in 2011, and the ‘Memorandum of Understanding [MoU] between the FAO, WOAH and WHO (Tripartite) Regarding Cooperation to Combat Health Risks at the Animal-Human-Ecosystem Interface in the Context of the One Health Approach and Including Antimicrobial Resistance’ was not signed until 2018,Footnote ⁵² it is perhaps somewhat understandable that the WHO did not deem it necessary to take a One Health approach to the PIP Framework.Footnote ⁵³ But by the time the international community was dealing with COVID-19, it was abundantly clear that the international regulation of pathogen samples and associated data could not and should not be confined to the WHO. All aspects of human health are intertwined with animal and environmental health, and the management of pathogens at the international level is no different.

Pathogen ABS is an issue that cuts across multiple UN bodies. For instance, the management of veterinary pathogens falls within the remit of the WOAH and agriculturally relevant pathogens are within the remit of WOAH as well as the FAO. The United Nations Environment Programme (UNEP) is responsible for the CBD and its subsidiary agreements that create international rules for the transfer of sovereign genetic resources (including human, plant, and animal pathogens). In 2022, the Tripartite was expanded to become the Quadripartite with the inclusion of UNEP.Footnote ⁵⁴ But there are additional (perhaps unexpected) UN bodies that play a role in the management of pathogen samples and associated data.Footnote ⁵⁵ As the CBD and Nagoya Protocol also prescribe rules for the transfer of Traditional Knowledge associated with genetic resources, pathogen ABS can involve Indigenous peoples and local communities as stakeholders in the transfer of pathogen-associated Traditional Knowledge.Footnote ⁵⁶ Therefore, the United Nations Declaration on the Rights of Indigenous Peoples 2007 (UNDRIP) will also be relevant.Footnote ⁵⁷

Focusing only on human pathogens does not adequately account for the very complexity that the One Health concept aims to address. For instance, African Swine Fever Virus (ASFV) was first reported in domestic pig populations in China in 2018, devastating the Chinese pork industry.Footnote ⁵⁸ Researchers have speculated that this left consumers looking for alternative sources of protein:

While it is unclear how disruption to pork markets may have affected activity at wildlife markets, the convergence of circumstances outlined here, with first the incursion of ASF virus into China followed closely with the first detection of SARS-CoV-2 virus, suggest that acceleration of COVID-19 cases due to severe disruption of the Chinese pork market is plausible, possibly through increased congregation of vendors and consumers at the markets.Footnote ⁵⁹

The complexities are compounded by the fact that COVID-19 has likely impacted the spread of ASFV.Footnote ⁶⁰ The COVID-19 pandemic created a huge demand for diagnostic laboratory reagents, straining the ability of veterinary laboratories to monitor the distribution of ASFV.Footnote ⁶¹ This is just one example of two pathogens that have potentially had a mutual impact on the spread of each other. The fact is, however, that the proposed PABS System takes none of this complexity into account. As discussed, it is modelled on the PIP Framework and has been designed with COVID-19 in mind. Therefore, it is focused on dealing with airborne threats from highly contagious respiratory pathogens and does not seem to have considered how pathogens with alternative transmission routes (e.g. foodborne illnesses), pathogens with multiple animal reservoirs, or issues like antimicrobial resistance might factor in.

If the PABS System were to take a genuine One Health approach, it would need the active involvement of at least the other Quadripartite members in addition to the WHO: that means the FAO, WOAH, and UNEP should be closely involved in this process as well. Another approach might be to place the PABS System under the higher authority of the UN General Assembly,Footnote ⁶² which would have greater coordination powers across all elements of the UN (not just the Quadripartite, but other agencies like the World Intellectual Property Organisation). Stefania Negri and Mark Eccleston-Turner go even further:

Ultimately, a bolder proposal to advance cooperation under the One Health approach could be the establishment of an UN-OneHealth, following the example of other specific UN-led interagency collaboration mechanisms existing in the field of environmental protection – namely UN-Oceans, UN-Water and UN-Energy – or in the field of public health, like UNAIDS. As already noted elsewhere, UNAIDS in particular presents relevant characteristics facilitating multisectoral, interinstitutional and multi-stakeholder cooperation, notably an institutionally independent interagency coordination mechanism, with a structure including a dedicated intergovernmental forum, and a separate body for participating agencies to operationalise policy decisions.Footnote ⁶³

4.5 Taking Traditional Knowledge into Account

As a concept, One Health is an acknowledgement that ‘[p]rediction, prevention, mitigation, and restoration phases of [emerging infectious disease] outbreaks require consideration of cultural, political, industrial, economic, nutritional, and psychological components of complex, overlapping societies and habitats’,Footnote ⁶⁴ and there is a growing recognition of the importance of non-Western ways of knowing about these elements.Footnote ⁶⁵ The CBD recognises the importance of Traditional Knowledge in environmental conservation and sustainable development, and encourages parties to seek the ‘approval and involvement of the holders of such knowledge’ and for the users of traditional ‘knowledge, innovations and practices’ to share benefits in a fair and equitable way.Footnote ⁶⁶ The Nagoya Protocol goes further in requiring users of Traditional Knowledge associated with genetic resources to obtain prior informed consent and come to mutually agreed terms before using the Traditional Knowledge belonging to Indigenous peoples and local communities. Given that Traditional Knowledge is an integral part of the international ABS regime, it is astonishing that Traditional Knowledge has not been included in any of the INB’s negotiating documents of the Pandemic Treaty, particularly when the INB intends for the PABS System to be formally recognised under the Nagoya Protocol. Indeed, it is not even clear that this issue has been considered at all.

Mark Eccleston-Turner and I have previously suggested that traditional burial practices associated with the spread of Ebola virus during the West African epidemic in 2014,Footnote ⁶⁷ and traditional pig or poultry farming practices that could provide insights about influenza virus emergence, transmission, and virulence would certainly fit the definition of Traditional Knowledge associated with human pathogens.Footnote ⁶⁸ If the PABS System were to take a One Health approach to ‘detect and prevent health threats at the animal and human interface’,Footnote ⁶⁹ then the scope of Traditional Knowledge associated with pathogens is likely to be quite broad and include things like the distribution of bat populations over time, various geographical considerations impacting pathogen distribution, seasonal weather patterns, livestock management (e.g. herding routes, food and water sources), the identification of sick animals, and various cultural practices (e.g. meat preparation). In the above example about ASFV, researchers noted that feeding pigs ‘kitchen waste (including both raw and cooked pork)’ and pig population density were both major factors in the transmission of the virus.Footnote ⁷⁰ Such information could also be deemed ‘knowledge, innovations and practices’ within the scope of the CBD and Nagoya Protocol. If the PABS System of the Pandemic Treaty is to be recognised as a specialised international ABS instrument within the meaning of Article 4(4) of the Nagoya Protocol,Footnote ⁷¹ then it cannot simply disregard one of the major components of the Nagoya Protocol: the fair and equitable sharing of benefits arising from the utilisation of Traditional Knowledge associated with genetic resources.

4.6 Deep Prevention or Spillover Detection?

The rapid international sharing of pathogen samples and associated genetic sequence data plays a vital role in epidemic and pandemic prevention. Ginevra Le Moli makes a distinction between two types of prevention: preventing the spillover of disease from animals to humans (which Le Moli calls ‘spillover prevention’ or ‘deep prevention’) and preventing the spread of diseases across international borders (disease containment).Footnote ⁷² Le Moli points out that the global health law architecture, since the International Sanitary Conferences in the mid nineteenth century, through to the most modern version of the International Health Regulations 2005, is primarily concerned with disease containment rather than preventing the spillover from animal species occurring in the first place.Footnote ⁷³

With its scope limited to just human pathogens, it is clear that the proposed PABS System is not at all focused on deep/spillover prevention. Le Moli states that the historical focus on containment was perhaps justifiable when containment was all that could reasonably be achieved, but that the science has evolved to the point where deep prevention is possible: where the inclusion of metagenomic approaches used to analyse environmental samples,Footnote ⁷⁴ for example, could help form a more holistic appreciation of disease threats in both animals and humans. And yet, the proposed PABS System in the Pandemic Treaty still appears to be ‘trapped within a prior framing of the problem’,Footnote ⁷⁵ perpetuating the structural bias of containment within the UN system while deploying One Health rhetoric.

Many new political, policy, and scientific initiatives have sprung up in the wake of the COVID-19 pandemic, but ‘there is a persistent gap between pledges to advance integrated action, often under the One Health banner, and effective implementation’.Footnote ⁷⁶ Nithin Ramakrishnan recently analysed three One Health policy initiatives within the UN system, demonstrating that the One Health concept is steadily morphing into an agenda for bio-surveillance, particularly surveillance of the Global South.Footnote ⁷⁷ Ramakrishnan states that:

Such a skewed application of the One Health approach is problematic for a twofold reason. It serves the interests of industrialized countries, potentially favouring them in gaining further access and control over the world’s biological resources or genetic diversity. Secondly, it diverts attention from high income countries’ differentiated responsibilities when it comes to addressing global warming or loss of biodiversity as drivers of zoonotic spillovers through One Health approach.Footnote ⁷⁸

Indeed, the PIP Framework also falls into this trap. While not explicitly a One Health initiative, the PIP Framework is dealing with a zoonotic disease, only it does so solely from a human perspective.Footnote ⁷⁹ The sharing of tangible benefits under the PIP Framework (such as pandemic vaccine doses and diagnostic kits) is triggered when there is an influenza pandemic. The only ongoing benefit-sharing that occurs under the PIP Framework is in the form of Partnership Contributions: voluntary payments from pharmaceutical companies totalling US$28 million per year.Footnote ⁸⁰ The vast majority of this money goes towards enhancing laboratory and surveillance capacity,Footnote ⁸¹ with the specific aim of aiding countries to share their influenza samples with the WHO’s GISRS network and report influenza data.Footnote ⁸² Furthermore, an analysis of the SMTAs used in the PIP Framework indicated that the sharing of influenza virus samples is basically mandatory for participating labs, while the provision of tangible benefits from pharmaceutical companies is not guaranteed.Footnote ⁸³ This all adds up to the perception that ‘the only actionable objectives [of many UN One Health initiatives] ultimately come down to surveillance and rapid (continuous) data sharing activities about biological materials, grossly disregarding the link between such sharing of these resources and benefits sharing’.Footnote ⁸⁴

In the Pandemic Treaty negotiations, the proposed PABS System (in its current form) recycles many of the same problems of the PIP Framework. Its focus is on obtaining access to human pathogens, seemingly without regard to the One Health approach that is also contained in the Pandemic Treaty draft, and where reciprocal benefits are far from guaranteed.Footnote ⁸⁵ This makes the PABS System seem fundamentally extractive; an effort to ‘modernize the intrinsically neo-colonial character of international health law’ that allows high-income countries to collect samples from low- and middle-income countries and turning low- and middle-income countries into the early warning system for high-income countries.Footnote ⁸⁶

On the topic of benefits, the PABS System focuses on the delivery of ‘pandemic-related products’ (such as vaccines, medications, personal protective equipment, etc.), meaning a pandemic will need to be declared before such benefits are made available to countries with the greatest need. On the other hand, benefits could be shared during inter-pandemic times to enhance deep prevention (spillover prevention). This means that countries would not have to wait for a pandemic before they can access benefits from a PABS System they have had to consistently contribute to during inter-pandemic periods. Deep prevention benefits could be channelled into initiatives that reduce deforestation, intensive agricultural practices (including antibiotic overuse), and destructive mining practices. They could be used to increase biodiversity, clean up polluted waterways and diversify land use. Such initiatives tackle the primary drivers of infectious disease emergence and align well with the CBD’s key objectives of environmental conservation and sustainable development. Put simply, the sharing of benefits for deep prevention activities is more in line with the One Health concept, and it could mean that countries see tangible benefits before the outbreak of an emerging infectious disease that can reduce the risk of the disease emerging in the first place.

4.7 Conclusion: What Could a One Health Approach Achieve?

The proposed PABS System, like the rest of the Pandemic Treaty, suffered from a rush to meet impossibly tight deadlines. The international ABS regime under the CBD and Nagoya Protocol is complex (and is getting more complicated still with the negotiation of a new multilateral approach to the sharing of benefits arising from the use of Digital Sequence Information under the newly-adopted Post-2020 Global Biodiversity Framework).Footnote ⁸⁷ The members of the INB were tasked with negotiating and drafting an entirely new international instrument for pandemic prevention, preparedness, and response, and pathogen ABS was just one component within that mandate. This means the complexities of the existing system for ABS have not been adequately factored into the design of the PABS System, despite the INB intending for it to be recognised as a specialised international ABS instrument under the Nagoya Protocol. Furthermore, the One Health approach was supposed to be a guiding principle of the Pandemic Treaty from the beginning, but this is not evidenced in the current proposal for the PABS System.

A genuine attempt at incorporating a One Health approach in the PABS System would mean that its scope incorporates animal pathogens and potentially environmental samples, that the WHO would (at the very least) include the other members of the One Health Quadripartite in the design of the PABS System, and would ensure they were also involved in the eventual implementation and operation of the System. A better understanding of the finer points of ABS and its connection to the One Health approach would mean that a One Health PABS System accounts for Traditional Knowledge held by Indigenous peoples and local communities for knowledge associated with pathogenic genetic resources. Finally, a PABS System that made a genuine effort at applying the One Health approach to pandemic prevention would aim for deep prevention. That is, it would make an effort to channel benefits into meeting the key objectives of the CBD: environmental sustainability and sustainable development, particularly in low- and middle-income countries. This would increase the likelihood that countries would get access to benefits early (as it is not guaranteed that they will receive any benefits during a pandemic) and it would reduce the chance that a pathogen will spill over from animal populations into humans in the first place.

Footnotes

¹ See Michelle Rourke, ‘Restricting Access to Pathogen Samples and Epidemiological Data: A Not-So-Brief History of “Viral Sovereignty” and the Mark It Left on the World’ in Mark Eccleston-Turner and Iain Brassington (eds.), Infectious Diseases in the New Millennium (Springer Nature 2020) 167–191.

² Hassan Salem and Martin Kaltenpoth, ‘The Nagoya Protocol and Its Implications for Microbiology’ (2023) 8(12) Nature Microbiology 2234, 2236. ‘The recent COVID-19 pandemic has dramatically illustrated how important the rapid international exchange of samples and the public release of sequence data was for the timely development of diagnostic tests and vaccines. This exchange, however, happened on a voluntary basis, with provider countries renouncing their right to negotiate ABS terms on viral samples in favour of a rapid international effort to combat the disease’ (citations omitted).

³ Michelle Rourke, Mark Eccleston-Turner, Alexandra Phelan, and Lawrence Gostin, ‘Policy Opportunities to Enhance Sharing for Pandemic Research’ (2020) 368(6492) Science 716.

⁴ World Health Assembly, ‘The World Together: Establishment of an Intergovernmental Negotiating Body to Strengthen Pandemic Prevention, Preparedness and Response’ (1 December 2021) SSA2(5). Available at: https://apps.who.int/gb/ebwha/pdf_files/WHASSA2/SSA2(5)-en.pdf.

⁵ World Health Assembly, ‘Strengthening Preparedness for and Response to Public Health Emergencies through Targeted Amendments to the International Health Regulations (2005)’ (1 June 2024) WHA77/17. Available at: https://apps.who.int/gb/ebwha/pdf_files/WHA77/A77_R17-en.pdf.

⁶ World Health Assembly, ‘Intergovernmental Negotiating Body to Draft and Negotiate a WHO Convention, Agreement or Other International Instrument on Pandemic Prevention, Preparedness and Response. Report by the Director-General’ (27 May 2024) A77/10. Available at: https://apps.who.int/gb/ebwha/pdf_files/WHA77/A77_10-en.pdf.

⁷ World Health Assembly, ‘Intergovernmental Negotiating Body to Draft and Negotiate a WHO Convention, Agreement or other International Instrument on Pandemic Prevention, Preparedness and Response’ (1 June 2024) WHA77(20). Available at: https://apps.who.int/gb/ebwha/pdf_files/WHA77/A77_(20)-en.pdf.

⁸ WHO, ‘Intergovernmental Negotiating Body’, A77/10, Annex, Art. 12. Note that this language had not been agreed by the negotiators. Available at: https://apps.who.int/gb/ebwha/pdf_files/WHA77/A77_10-en.pdf.

⁹ See WHO, ‘Draft Annotated Outline of a WHO Convention, Agreement or Other International Instrument on Pandemic Prevention, Preparedness and Response’ (14 June 2022) A/INB/1/12, available at: https://apps.who.int/gb/inb/pdf_files/inb1/A_INB1_12-en.pdf; WHO, ‘Working Draft, Presented on the Basis of Progress Achieved, for the Consideration of the Intergovernmental Negotiating Body at its Second Meeting’ (13 July 2022) A/INB/2/3, available at: https://apps.who.int/gb/inb/pdf_files/inb2/A_INB2_3-en.pdf; WHO, ‘Conceptual Zero Draft for the Consideration of the Intergovernmental Negotiating Body at its Third Meeting’ (25 November 2022) A/INB/3/3, available at: https://apps.who.int/gb/inb/pdf_files/inb3/A_INB3_3-en.pdf; WHO, ‘Zero Draft of the WHO CA+ for the Consideration of the Intergovernmental Negotiating Body at its Fourth Meeting’ (1 February 2023) A/INB/4/3, available at: https://apps.who.int/gb/inb/pdf_files/inb4/A_INB4_3-en.pdf; WHO, ‘Bureau’s Text of the WHO Convention, Agreement or Other International Instrument on Pandemic Prevention, Preparedness and Response (WHO CA+)’ (2 June 2023) A/INB/5/6, available at: https://apps.who.int/gb/inb/pdf_files/inb4/A_INB4_3-en.pdf; WHO, ‘Proposal for Negotiating Text of the WHO Pandemic Agreement’ (30 October 2023) A/INB/7/3, available at: https://apps.who.int/gb/inb/pdf_files/inb7/A_INB7_3-en.pdf.

¹⁰ WHO, ‘Intergovernmental Negotiating Body’, A77/10, Annex, Art. 1(c). Available at: https://apps.who.int/gb/ebwha/pdf_files/WHA77/A77_10-en.pdf.

¹¹ Footnote Ibid., Annex, Art. 12(4)(a). Previous drafts noted that this should occur ‘at all times, both during and between pandemics’. See WHO, ‘Proposal for Negotiating Text’, Art. 12(3)(b).

¹² WHO, ‘Intergovernmental Negotiating Body’, A77/10, Annex, Art. 1(f).

¹³ Footnote Ibid., Annex, Art. 12(4)(a).

¹⁴ Footnote Ibid., Annex, Art. 12(4)(b).

¹⁵ Footnote Ibid., Annex, Art. 12(4)(b)(iii).

¹⁶ Footnote Ibid., Annex, Art. 12(4)(b).

¹⁷ Footnote Ibid., Annex, Art. 12(4)(b) (i and ii).

¹⁸ Footnote Ibid., Annex, Art. 5(1).

¹⁹ WHO, ‘Proposal for Negotiating Text’, Art. 5(2).

²⁰ WHO, ‘Draft Annotated Outline’, Part VIII: ‘This part could address pandemic-related access and benefit sharing, such as proposals to build upon existing mechanisms in the global health access and benefit-sharing arena, i.e. proposals aimed at addressing all emerging and novel pathogens of human pandemic potential by adopting the mechanisms and/or principles contained in existing (Global Influenza Surveillance and Response System and Pandemic Influenza Preparedness Framework) or previous (Global Action Plan for Influenza vaccine manufacturing capacity) influenza-related systems’.

²¹ Kelley Lee, ‘The Global Governance of Emerging Zoonotic Diseases: Challenges and Proposed Reforms’, Council on Foreign Relations Global Health Program: Workshop Policy Paper (13 February 2023): www.cfr.org/report/global-governance-emerging-zoonotic-diseases. Also, ‘EID (Emerging Infectious Disease) events are dominated by zoonoses (60.3% of EIDs): the majority of these (71.8%) originate in wildlife (example, severe acute respiratory virus, Ebola virus), and are increasing significantly over time’; Kate Jones, Nikkita Patel, Marc Levy et al., ‘Global Trends in Emerging Infectious Diseases’ (2008) 451 Nature 990, 990.

²² Note that in the ABS policy space, the term ‘Digital Sequence Information’ (DSI) is being used to refer to ‘genetic sequence data’ and potentially other types of data. A precise definition for DSI has not yet been determined by the Conference of the Parties to the CBD. See Conference of the Parties to the Convention on Biological Diversity, ‘Decision Adopted by the Conference of the Parties to the Convention on Biological Diversity: 15/9 Digital Sequence Information on Genetic Resources’ (19 December 2022) CBD/COP/DEC/15/9, 2, available at: www.cbd.int/doc/decisions/cop-15/cop-15-dec-09-en.pdf.

²³ Convention on Biological Diversity (1992) Art. 1 (hereafter ‘CBD’), available at: www.cbd.int/doc/legal/cbd-en.pdf.

²⁴ Footnote Ibid., Art. 15(1).

²⁵ Footnote Ibid., Art. 15(5).

²⁶ Footnote Ibid., Art. 15(4).

²⁷ Footnote Ibid., Art. 15(7).

²⁸ It is important to remember that environmental conservation is just one of three objectives of the CBD, and that the fair and equitable sharing of benefits is an objective of the CBD in its own right and not just as a mechanism to deliver the other two objectives (environmental conservation and sustainable development).

²⁹ CBD, Art. 2. Note that the CBD was originally intended to cover human genetic resources but these were excluded from the scope of the treaty after adoption. See Sachin Chaturvedi, Sara Crager, Miltos Ladikas, Vasantha Muthuswami, Yeyang Su, and Huanming Yang, ‘Promoting an Inclusive Approach to Benefit Sharing: Expanding the Scope of the CBD?’ in Doris Schroeder and Julie Lucas Cook (eds.), Benefit Sharing: From Biodiversity to Human Genetics (Springer 2013) 153–177.

³⁰ Pathogens are a major component of biodiversity and play a vital role in healthy ecosystems (including keeping pest population sizes in check). For these reasons, pathogens are also used in synthetic biology applications for biocontrol and other biotechnological developments.

³¹ David Fidler, ‘Influenza Virus Samples, International Law, and Global Health Diplomacy’ (2008) 14(1) Emerging Infectious Diseases 88.

³² See Section 4.2.2 herein. A more detailed history of how pathogens came to be recognised as ‘genetic resources’ under the remit of the CBD and Nagoya Protocol can be found in Rourke, ‘Restricting Access to Pathogen Samples and Epidemiological Data’.

³³ Sally Mueni Katee and Christian Keambou Tiambo, ‘Discussing the Drawbacks of the Implementation of Access and Benefit Sharing of the Nagoya Protocol Following the COVID-19 Pandemic’ (2021) 9 Frontiers in Public Health 639581, 2.

³⁴ Nagoya Protocol 2010, Arts 7 and 12, available at: www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.

³⁵ Such as in situations where the country of origin is not known or the genetic resource is endemic to multiple territories (‘transboundary situations’). Footnote Ibid., Art. 10.

³⁶ ‘This Protocol is the instrument for the implementation of the access and benefit-sharing provisions of the Convention. Where a specialized international access and benefit-sharing instrument applies that is consistent with, and does not run counter to the objectives of the Convention and this Protocol, this Protocol does not apply for the Party or Parties to the specialized instrument in respect of the specific genetic resource covered by and for the purpose of the specialized instrument’. Footnote Ibid., Art. 4(4).

³⁷ ‘In the development and implementation of its access and benefit-sharing legislation or regulatory requirements, each Party shall: … (b) 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’. Footnote Ibid., Art. 8(b).

³⁸ Maria Serena Beato and Valentina Veneroso, ‘The Nagoya Protocol on Access and Benefit Sharing: The Neglected Issue of Animal Health’ (2023) 14 Frontiers in Microbiology 1124120, 2.

³⁹ This has been called ‘viral sovereignty’. For a fuller accounting of this event in context, see Rourke, ‘Restricting Access to Pathogen Samples and Epidemiological Data’.

⁴⁰ Rana Sulieman, Lawrence N. Anyanwu, Vicky Cardenas, Mohamed Moussif, Ebere Okereke, and Oyeronke Oyebanji, ‘International Legal Issues of National Sovereignty and Authority Impacting Global Health Security’ in Scott J N McNabb, Affan T Shaikh, Carol J Haley (eds.), Modernizing Global Health Security to Prevent, Detect, and Respond (Academic Press, 2024) 71–85, 78 https://doi.org/10.1016/B978-0-323-90945-7.00015-4.

⁴¹ See Natalie Porter, Viral Economies: Bird Flu Experiments in Vietnam (University of Chicago Press, 2019), chapter 5.

⁴² Footnote Ibid.

⁴³ Vijay Prashad, The Darker Nations: A People’s History of the Third World (The New Press 2022), 44. Note that Prashad states that the ‘spatial metaphor’ of the Global North and the Global South ‘ignores the mature class hierarchies’ that exist in both the Global North and Global South countries (277).

⁴⁴ World Health Organization, ‘Report of the 2016 PIP Framework Review Group’ (2016) Annex 1 EB140/16 38, available at: https://apps.who.int/gb/ebwha/pdf_files/EB140/B140_16-en.pdf.

⁴⁵ Footnote Ibid., 37. Most notably, the PIP Framework was built around an existing WHO-affiliated global laboratory network that already shared influenza viruses (GISN), and that included the active participation of pharmaceutical companies (and other users). The PIP Framework simply formalised the international transfers of viruses that were already occurring. There is no such WHO-affiliated infrastructure for the transfer of all human pathogens with pandemic potential that could be similarly formalised for the swift deployment of a global pathogen ABS system.

⁴⁶ One very concerning aspect of calling the PIP Framework a success in terms of benefit-sharing is that it has never been tested during an influenza pandemic (the most recent influenza pandemic was declared in 2009 and the PIP Framework was adopted in 2011). Therefore, the triggering event that initiates the sharing of vaccines and other tangible benefits through the PIP Framework has not occurred during the lifetime of the agreement.

⁴⁷ Emphasis added. World Health Organization, ‘Pandemic Influenza Preparedness Framework for the Sharing of Influenza Viruses and Access to Vaccines and Other Benefits’ (24 May 2011), 2nd Edition, Art. 2(i) (hereafter the ‘PIP Framework’). To be clear, the PIP Framework applies to ‘PIP biological materials’ which it defines as ‘human clinical specimens, virus isolates of wild type human H5N1 and other influenza viruses with human pandemic potential; and modified viruses prepared from H5N1 and/or other influenza viruses with human pandemic potential developed by WHO GISRS laboratories’ (Art. 4.1). Available at: https://iris.who.int/bitstream/handle/10665/341850/9789240024854-eng.pdf.

⁴⁸ Priya Venkatesan, ‘Avian influenza spillover into mammals’ (2023) 7 The Lancet Microbe e492. Available at https://doi.org/10.1016/S2666-5247(23)00173-8.

⁴⁹ The name OFFLU came from the first letters of the OIE (Office International des Epizooties, the former name of WOAH) and FAO, plus the contraction ‘flu’.

⁵⁰ Mueni Katee and Keambou Tiambo, ‘Discussing the Drawbacks of the Implementation of Access and Benefit Sharing of the Nagoya Protocol Following the COVID-19 Pandemic’, 8.

⁵¹ Adam Kamradt-Scott and Kelley Lee, ‘The 2011 Pandemic Influenza Preparedness Framework: Global Health Secured or a Missed Opportunity?’ (2011) 59 Political Studies 831; Mark Eccleston-Turner, ‘The Pandemic Influenza Preparedness Framework: A Viable Procurement Option for Developing States?’ (2017) 17(4) Medical Law International 227; Michelle Rourke, ‘Access by Design, Benefits If Convenient: A Closer Look at the Pandemic Influenza Preparedness Framework’s Standard Material Transfer Agreements’, (2019) 97 The Milbank Quarterly 91; Abbie-Rose Hampton, ‘Pathogen Dematerialization and the ABS Loophole’ (2023) 10(1) Journal of Law and the Biosciences 1.

⁵² ‘Memorandum of Understanding Between the United Nations Food and Agriculture Organization, World Organisation for Animal Health, and the World Health Organization Regarding Cooperation to Combat Health Risks at the Animal-Human-Ecosystem Interface in the Context of the One Health Approach and Including Antimicrobial Resistance’ (30 May 2018). Available at: https://web.archive.org/web/20220308023910/https://www.who.int/zoonoses/MoU-Tripartite-May-2018.pdf.

⁵³ Having said that, the FAO/OIE/WHO Tripartite Concept Note was released a year before the PIP Framework was adopted and as H5N1 avian influenza was at the centre of the 2006/2007 dispute about viral sovereignty and virus ABS, the link with animals was clear from the beginning. WHO, ‘The FAO-OIE-WHO Collaboration: A Tripartite Concept Note’ (28 September 2010). Available at www.who.int/publications/m/item/the-fao-oie-who-collaboration.

⁵⁴ ‘Memorandum of Understanding Between the Food and Agriculture Organization of the United Nations and the World Organisation for Animal Health and the World Health Organization and the United Nations Environment Programme Regarding Cooperation to Combat Health Risks at the Animal-Human-Ecosystems Interface in the Context of the “One Health” Approach and Including Antimicrobial Resistance’ (17 March 2022). Available at www.fao.org/3/cb9403en/cb9403en.pdf.

⁵⁵ There are other international bodies and forums that regulate dealings with pathogens that demonstrate how complex the issue of international pathogen sharing can be. For instance, commercially relevant pathogens and pathogen-related technologies are likely to come under the remit of the World Trade Organisation, World Customs Organisation and the World Intellectual Property Organisation. Pathogens that have the potential to be used in bioterror or biowarfare fall under the UN Office for Disarmament Affairs and are covered by the Biological and Toxin Weapons Convention 1972. The WHO and its member states are yet to grapple with these complexities.

⁵⁶ See Michelle Rourke, ‘When Knowledge Goes Viral: Assessing the Possibility of Virus-Related Traditional Knowledge for Access and Benefit-Sharing’ (2018) 21 Journal of World Intellectual Property 356.

⁵⁷ See Section 4.5 herein.

⁵⁸ ‘With Chinese citizens consuming 28% of the global meat production, China has emerged as the primary pork-producing country, with half of the world’s pigs – upward of 700 million head per year – being raised in China’. Claire Tucker, Anna Fagre, George Wittemyer, Tracy Webb, Edward Okoth Abworo, and Sue VandeWoude, ‘Parallel Pandemics Illustrate the Need for One Health Solutions’ (2021) 12 Frontiers in Microbiology 2.

⁵⁹ Footnote Ibid.

⁶⁰ ‘Indeed, the COVID-19 pandemic could have affected several aspects of the ASFV entry pathways into ASF free countries. Since December 2019, ASF has been continued spreading into new areas due to the diffusive nature of the virus. This further spread could have been facilitated by the difficulties in animal diseases prevention and control due to the COVID-19 lockdown’ (citations omitted). Angela Fanelli, Olga Muñoz, Luca Mantegazza, Marco De Nardi, and Ilaria Capua, ‘Is the COVID-19 Pandemic Impacting on the Risk of African Swine Fever Virus (ASFV) Introduction into the United States? A Short-Term Assessment of the Risk Factors’ (2022) 69 Transboundary and Emerging Diseases e505, e506.

⁶¹ Footnote Ibid., e506.

⁶² Elliot Hannon, Layth Hanbali, Susanna Lehtimaki, and Nina Schwalbe, ‘Why We Still Need a Pandemic Treaty’ (2022) 10 The Lancet e1232, e1232.

⁶³ Stefania Negri and Mark Eccleston-Turner, ‘One Health and Pathogen Sharing: Filling the Gap in the International Health Regulations to Strengthen Global Pandemic Preparedness and Response’ (2022) 12 International Organizations Law Review 188, 210.

⁶⁴ Tucker et al., ‘Parallel Pandemics Illustrate the Need for One Health Solutions’, 4.

⁶⁵ See, for example, Alex Tasker and Ian Scoones, ‘High Reliability Knowledge Networks: Responding to Animal Diseases in a Pastoral Area of Northern Kenya’ (2022) 58(5) The Journal of Development Studies 968.

⁶⁶ ‘Each Contracting Party shall, as far as possible and as appropriate … Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices’ CBD, Art. 8(j).

⁶⁷ Michelle Rourke and Mark Eccleston-Turner, ‘The Pandemic Influenza Preparedness Framework as a “Specialized International Access and Benefit-Sharing Instrument” Under the Nagoya Protocol’ (2021) 72(3) Norther Ireland Legal Quarterly 411, 427.

⁶⁸ Rourke, ‘When Knowledge Goes Viral’, 365.

⁶⁹ WHO, ‘Proposal for negotiating text’, Preamble, para. 8.

⁷⁰ Tucker et al., ‘Parallel Pandemics Illustrate the Need for One Health Solutions’, 2.

⁷¹ Note that it is not yet clear what international body has the authority to have a specialised international ABS instrument recognised under the Nagoya Protocol, but it is likely that it is the Meeting of the Parties to the Nagoya Protocol (i.e. the WHO does not have the authority to recognise the PABS System under the Pandemic Treaty as a specialised international ABS instrument). See Convention on Biological Diversity, ‘Study into Criteria to Identify a Specialized International Access and Benefit-Sharing Instrument, and a Possible Process for Its Recognition: Note by The Executive Secretary’ (29 May 2018) CBD/SBI/2/INF/17, available at: www.cbd.int/doc/c/9376/a644/1bed20a1837af8e3d1edc5f9/sbi-02-inf-17-en.pdf; and further analysis in Rourke and Eccleston-Turner, ‘The Pandemic Influenza Preparedness Framework’.

⁷² Ginevra Le Moli, ‘The Containment Bias of the WHO International Health Regulations’ (2023) British Yearbook of International Law 5. Available at https://doi.org/10.1093/bybil/brad001. This distinction is also referred to as ‘primary prevention’ (spillover prevention) and ‘secondary prevention’ (containment). See Lee, ‘The Global Governance of Emerging Zoonotic Diseases’, 2.

⁷³ Le Moli, ‘The Containment Bias of the WHO International Health Regulations’, 8.

⁷⁴ Chelsea Liang et al., ‘Managing the Transition to Widespread Metagenomic Monitoring: Policy Considerations for Future Biosurveillance’ (2023) 21(1) Health Security 34.

⁷⁵ Le Moli, ‘The Containment Bias of the WHO International Health Regulations’, 25.

⁷⁶ Lee, ‘The Global Governance of Emerging Zoonotic Diseases’, 3.

⁷⁷ Nithin Ramakrishnan, ‘Bio-surveillance as One Health: A Critique of Recent Definitions and Policy Initiatives’ (2023) 66 Development 1. Available at https://doi.org/10.1057/s41301-023-00396-x.

⁷⁸ Footnote Ibid., 2.

⁷⁹ To be clear, I am referring to the PIP Framework here (i.e. the ABS framework), not the GISRS (the network of influenza laboratories).

⁸⁰ World Health Organization, ‘Pandemic Influenza Preparedness (PIP) Framework: Partnership Contribution (PC) Preparedness High-Level Implementation Plan II 2018–2023’ (revised version, 2021) WHO/WHE/IHM/PIP/2018.1 Rev.1, 3. Available at: https://iris.who.int/bitstream/handle/10665/260538/WHO-WHE-IHM-PIP-2018.1-eng.pdf.

⁸¹ See World Health Organization, ‘Pandemic Influenza Preparedness (PIP) Framework: Partnership Contribution (PC) Preparedness High-Level Implementation Plan II 2018–2023’ (revised version, 2021) WHO/WHE/IHM/PIP/2018.1 Rev.1, Annex 2: Budget, 52. Note that for some reason, the PIP Framework’s Partnership Contribution (PC) Preparedness High-Level Implementation Plan combines Output 1 (L&S: Laboratory and Surveillance Capacity Building) and Output 6 (IPPP: National Pandemic Influenza Preparedness and Response Plans) in the High-Level Budget for 2018–2023, seemingly because IPPP was once part of L&S (6). However, this makes it impossible to tell how these funds are apportioned based on this publicly available document.

⁸² Footnote Ibid., 65–66. ‘In the name of global health and prevention, countries from the Global South are then induced to expand their investments in surveillance – a somewhat new and perplexing conditionality’. Ramakrishnan, ‘Bio-surveillance as One Health’, 4.

⁸³ Rourke, ‘Access by Design, Benefits If Convenient’; Hampton, ‘Pathogen Dematerialization and the ABS Loophole’.

⁸⁴ Ramakrishnan, ‘Bio-surveillance as One Health’, 7. Note that Ramakrishnan is referring specifically to the Pandemic Treaty draft in this quote.

⁸⁵ See Abbie-Rose Hampton, Mark Eccleston-Turner, Michelle Rourke, and Stephanie Switzer, ‘“Equity” in the Pandemic Treaty: The False Hope of “Access and Benefit-Sharing”’ 72(4) (2023) International and Comparative Law Quarterly 1.

⁸⁶ Ramakrishnan, ‘Bio-surveillance as One Health’, 7.

⁸⁷ Conference of the Parties to the Convention on Biological Diversity, ‘Decision 15/9: Digital Sequence Information on Genetic Resources’ (19 December 2022) CBD/COP/DEC/15/9 3. Available at: www.cbd.int/doc/decisions/cop-15/cop-15-dec-09-en.pdf.

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