Nurul Barizah (2013) Revisiting State Obligation on Virus Sample Sharing; From Common Heritage of Maankind to State's Sovereign Right. In: DILA International Conference "Asian Ideas of International Law" Towards a Framework for the resolution of the territorial and Boundary Disoute. FH Unair-DILA-Kmi Korea, Surabaya, pp. 152-177. ISBN 978-602-14978-0-9

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Abstract

This research analyses the tradition of free international exchange of viruses developed by the World Health Organization (WHO) on the basis of protecting global health. This part also examines whether WHO Constitution provides an obligation to Member States to share pathogen materials, including viruses for the purpose of preventing global public health emergency. It is also analyses the position of WHO Collaborating Centers to share virus and research data to private sectors. Furthermore, it analyses the provisions of International Health Regulation (IHR) to address the international spread of disease and whether there is an explicit obligation for Member States share physical samples of viruses. This research also explores several international legal norms that regulate biological resources, in which the concept of free exchange of viruses may derived from. This part reviews the historical development of international law governing natural and biological resources. It derived from the concept of common heritage of mankind to sovereign right of state including the access to a fair and equitable benefit sharing from the use of resources. The most important part of this paper is that it examines whether virus fall within the scope of the Convention on Biological Diversity (CBD), including Cartagena and Nagoya Protocols. Lastly, this research discusses the whether there is state obligation under international human rights norms and international trade law, particularly from WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) on patent to share samples of virus. It covers the patentability of viruses and human body’s cell as well as the reason why the notion of a fair and equitable benefit sharing under the CBD do not exist in this WTO Agreement.

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