Abstract
Keywords
Introduction
An outbreak of Severe Acute Respiratory Syndrome (SARS)-CoV-2 (Covid-19) first occurred in Wuhan, China, in December 2019. 1 Within two weeks, the virus had spread to neighbouring countries, and days later cases were reported in the United States and Europe, leading the World Health Organization (WHO) to declare an international health emergency. 2 Between the first reported case in China and the time this paragraph was written (27 January 2021), there have been over 100 million cases of reported infections and over 2 million deaths worldwide, 3 leading to many governments developing elaborate health and safety plans to combat the virus.
The world has been thrown into a period of great uncertainty, but one thing is clear. Pathogenic viruses and the pandemics they have the potential to create can no longer be managed at a purely national level. National efforts to contain and/or prevent the disease are no longer sufficient, as the world we live in is too interconnected.
Today’s global society differs drastically from the one we experienced when the 2003 SARS and the 2007 Influenza A virus subtype H5N1 (H5N1) epidemics occurred. Those viruses stirred great debate about whether countries had a right to exercise sovereignty over pathogenic viruses born within their regions. During the H5N1 outbreak, the Indonesian government claimed a right to control foreign access to the virus found within its territory. 4 In 2003, the Chinese government refused to let representatives from the WHO and other foreign bodies access virus samples (or any related information) as they asserted that the outbreak was an ‘internal, national matter’ and claimed sovereignty over the virus. 5 However, these arguments are out of place in today’s globalised society. It is clear that arguing over who has sovereign control over a virus has not and will not help the international community in its efforts to tackle infectious diseases.
While it is understandable that countries would want to exercise viral sovereignty – the ability to have exclusive control and access over viruses being a powerful tool that governments can use to negotiate better access to health resources and vaccines for their own populations
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– this puts global health at risk. Globalisation means that a virus outbreak in any country has the potential to start a global pandemic, and this forces us to reconceptualise viruses as a global common that mankind shares regardless of national boundaries, instead of a sovereign good as some countries would like to claim. As Margaret Chan, Director of the WHO (2006–2017), said: After all it really is all of humanity that is under threat during a pandemic.
Viral sovereignty
‘Viral sovereignty’ is the assertion by an individual country of exclusive rights and control over a virus that has emerged in its territory. It enables that country to exclude all other states from accessing the virus without its permission 8 and presupposes that any matter regarding the virus is within the jurisdiction of that country and should not be interfered with by external parties. 9
Treaties
In 2007 Indonesia attempted to claim sovereignty over the H5N1 virus and refused to share samples with the WHO and other bodies. 10 Indonesia argued that viruses were effectively a biological resource, and therefore the country, having signed and ratified the Convention on Biological Diversity (CBD), should be able to exercise exclusive legal rights over the virus and its samples. 11 Since then, governments and academics have also referred to the Nagoya Protocol, a complimentary treaty to the CBD, when trying to establish viral sovereignty as an international principle. 12
It is argued that under Article 15 of the CBD 13 and Article 3 of the Nagoya Protocol, 14 viruses fall under the scope of ‘genetic resources’. As both the CBD and the Nagoya protocol expressly reaffirm the sovereign rights of countries over their natural and biological resources, 15 it has been argued that countries should be able to exercise sovereignty over viruses borne within their physical boundaries.
However, the assumption that viruses fall under the scope of ‘genetic resources’ has yet to be firmly established and is an extremely contentious matter. The inclusion of pathogens under the Nagoya protocol was heavily debated during negotiations, with parties failing to come to an agreement. 16 Additionally, the Nagoya protocol itself states in its preamble that it is ‘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’, 17 which suggests that, particularly with regard to the protection of global health, there may be good reason to exclude viruses from the scope of the treaties.
Furthermore, the inclusion of viruses under the treaties is potentially contradictory to their intentions. Under Article 1 of the CBD, one of its intentions is ‘the conservation of biological diversity’. 18 Given that countries go to great lengths to eradicate viruses, 19 as well as the fact that viruses often pose a direct threat to the continued existence of other natural resources, 20 it would be counter-intuitive to assume that viruses were intended to be included under the CBD.
Both the CBD and the Nagoya protocol also have the common objective to achieve ‘the fair and equitable sharing of the benefits arising from the utilization of genetic resources’. 21 While benefits sharing is essential to global health, as will be explained in greater detail below, a more strategic approach may be to characterise viruses as a global commons, so that it becomes the shared responsibility of countries to combat viruses and their potential outbreaks.
General principles of sovereignty
In the aftermath of previous outbreaks, countries (e.g. China and Indonesia) have relied on general principles of sovereignty to justify exercising exclusive rights over viruses born within their territories. 22 However, viruses are generally incompatible with these principles.
At their core, sovereign beings have a degree of physical permanence to a specific territory. 23 Established sovereign beings are objects that governments want to have permanent residence in their countries, and governments will generally take steps to achieve this. This is demonstrated by the offering of citizenship privileges by governments to maintain their populations. 24 It follows that countries can only extend sovereign rights over objects they intend to make a permanent element of their territory.
Fundamentally, countries do not intend for viruses to achieve permanence in their countries. The aim has always been to eradicate viruses, not preserve them. 25 The extreme lengths countries have taken during pandemics demonstrate how motivated countries are to eradicate viruses. During the 2003 SARS epidemic, Hong Kong 26 and Singapore 27 implemented mandatory quarantines and school closures to reduce infection rates. In 2014 Sierra Leone 28 enforced a nationwide lockdown in response to the Ebola outbreak, with healthcare volunteers going door-to-door to identify potentially infected persons. During the most recent ‘Covid-19’ pandemic, virtually every European country has implemented some form of lockdown 29 and instituted travel bans. 30 This desire to be rid of viruses directly contradicts the characteristic of sovereign beings, which achieve their permanence either through the state’s direct actions to maintain their residence or at the very least through the state’s inaction and lack of concern over its presence. Countries that have tried to claim sovereignty over viruses in the past have not done so to establish a permanent colony of the virus, but to gain potential benefits from national and global efforts to eradicate it. It is this lack of an intention to achieve permanence that makes viruses incompatible with sovereignty.
Similarities between viruses and global commons
‘Global commons’ are ‘natural resources that are not subject to the national jurisdiction of a particular state but are shared by other states, if not the international community as a whole’ 31 . Traditionally, global commons are viewed positively as the ‘common heritage of mankind’ 32 , the uses and benefits of which are to be shared by the international community. Commonly cited examples of this include resources available in the High Seas as well as research opportunities in the Arctics. 33 Alongside this, a second, negative category of global commons has developed over the past decade, known as the ‘shared responsibility’ 34 of the global community. Often invoked in cases of transboundary pollution, 35 a shared responsibility requires countries to contribute to the management and solving of a common problem, whether at a regional or international level. 36 Viruses have an inherent duality to them – they share characteristics with both the positive and negative categories of global commons.
Positive approach – Common heritage
There are two common characteristics that organisms categorised as global commons have. 37 First, unlike sovereign beings, these organisms cannot be accurately and/or specifically associated with any one country. 38 While there may have been some attempts by countries to claim or assign these to one specific region, these have largely been ineffective and rejected by supranational bodies and the international community as a whole. This characteristic makes such organisms incompatible with basic territorial sovereignty, defeating the attempts of countries to exercise exclusive control over them. Viruses lack this inherent territorial nature. The rapidity at which they travel and spread makes it difficult to definitively assign them to any one specific region. Similar to atmospheric particles, it is near impossible to determine the volume and specifics of a virus’ whereabouts at any given point in time. The severe lack of precision and evidence when determining the location and prevalence of any given virus means that it would be unprincipled to award a country sovereign rights. 39 Additionally, the location in which a virus is ‘discovered’ in humans may not be the origin of the virus. The nature of medical research and its relationship with viruses is that interest is only sparked when the virus becomes a threat to human beings. 40 The location it is associated with is usually where the virus crosses the species boundary, or where the greatest number of human beings are affected, and not actually where the virus first originated and developed. This was the case with the Spanish Flu pandemic, 41 which is most commonly associated with Spain despite the virus being present in Germany before that, or the H5N1 Crisis, where Indonesia claimed sovereignty in 2007 despite the virus first being discovered by a zoologist in geese in China in 1996 42 (long before it was capable of infecting humans). This demonstrates that attempts to claim sovereignty over a virus may not be based on true territorial sovereignty, since there may be no relation between the country claiming sovereignty and the origins of the virus.
Second, there are no successful attempts by any country to effectively exercise control over these organisms, because they either have proven to be practically ineffective (as is the case for atmospheric particles) or, where possible, are not recognised as legal by the rest of the international community and are thus legally impractical or impossible (such as attempts to colonise the Arctic Poles 43 ). Viruses fall under the former category, as demonstrated by state reactions to ‘Covid-19’. The current pandemic has made painfully clear that the best efforts of individual countries to stop the spread of viruses are, unfortunately, insufficient, as there are unpredictable and uncontrollable factors that make viruses hard to bring under human control. Every country currently battling the virus has had to enact some form of extreme measures. 44 Nationwide lockdowns, for example, have been adopted by many countries, and while they have slowed down the rate of infection, they are unable to prevent the spread of the virus entirely given the fluidity at which viruses cross borders. Additionally, such measures, while viable in the short term for the immediate relief of healthcare systems, are unsustainable and detrimental to the political, economic and social functioning of a country, meaning that in the long term it is practically impossible to enact any form of control over the virus. 45 Furthermore, these policies are an exercise of sovereign control over humans (recognised sovereign beings) and not of the virus itself, which further underlines the lack of control over viruses.
Negative approach – Shared responsibility
Viruses are also comparable to phenomenon that are regarded as the shared responsibility of all countries, such as pollution and climate change. The international community adopts a tiered approach towards such responsibilities. 46 In the immediate aftermath of a harmful event (e.g. a polluting act), it may be possible to assign responsibility to one specific country and to hold them accountable for the harm caused. However, all countries must bear the responsibility of the long-term detriments of the occurrence and continuation of such harmful acts (e.g. prolonged or repeated polluting). Regardless of whether a country is actively causing harm (e.g. by polluting) or passively allowing harm to continue (e.g. by allowing said acts to continue or not contributing to clean up efforts), either results in the perpetuation and/or worsening of the problem (such as how individual acts of pollution have snowballed into climate change).
The same logic applies to viruses, and their potentially lethal threat exacerbates the problem. Some have attributed the initial rampant spread of Covid-19 to the Chinese Government’s non-disclosure of initial pneumonia cases in Wu Han. 47 However, past February 2020, when countries were aware of the emerging threat, the continued spread of the virus across the globe became the responsibility of all countries. 48 Despite the attempts of some politicians to place the blame on China alone, it is undeniable that a contributing factor to the continued and increased presence of the virus was due to the inaction and complacency of governments when they were first informed of the virus.
Global public good
A ‘public good’ is one that no person can be excluded from using, and where one person’s use of them does not prevent anyone else’s.
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Given the highly reproductive rates of viruses, complimented by how easily bred they are in controlled environments (e.g. lab viruses), the use of viruses by one country will not deprive another of its use. Conversely, the more countries research the virus, the more the international community will benefit. In the early stages of any outbreak, a lack of knowledge greatly hinders the ability of governments to combat the disease. It is only when more information has been gathered that health bodies (both national and international) are able to more effectively target their policies to achieve the best results, and the earlier this information can be gathered, the better equipped society becomes in facing the virus. Thus, the international community can only benefit when more countries have controlled access to the virus, 51 making viruses a global public good. 52
Pathogenic viruses as the shared responsibility of the global community
It is necessary to consider the implications of categorising viruses under either the positive (common heritage) or negative (shared responsibility) descriptions, the effects this will potentially have on global health law and which classification may be more beneficial to the international community.
Viruses as a common heritage of men
If viruses were categorised positively as a common heritage of men, the most significant impact would be that all countries would be able to access samples of the virus regardless of where it is geographically. Individual governments would not be able to control access to virus samples as all countries would be equally entitled to it. 53 Classifying viruses as a common heritage gives all countries the option and opportunity to conduct research and benefit from collecting virus samples but does not make it compulsory for them to do so. 54
Similar to the Arctics, viruses undoubtedly offer a multitude of research opportunities. However, to describe viruses in a positive light is inherently counter-intuitive. The debate over viral sovereignty has only ever been discussed in the context of epidemics, and the interest in virus samples has overwhelmingly been in the interest of combating the disease it brings. It is thus problematic, in principle, to consider viruses as a common ‘
Viruses as a shared responsibility of men
If viruses were to be categorised as a shared responsibility of men, the duty to eradicate a pathogenic virus and prevent the spread of its disease would be shared by every member of the international community, and responsibility for the effects of a virus could not be expected to be borne by any sole country. 55 Not only would it require all countries to be able to access samples, there would also be an expectation that countries must actively take measures to minimise the prevalence of the virus and take steps that would contribute to the overall aim of eventual eradication of the virus and any related diseases. 56
It is indisputable that diseases are a burden on humanity. It is also undeniable that the aims of all governments with regard to diseases have been to survive and eradicate them. However, countries are often complacent in their attitudes towards viruses, with most governments only taking measures after the virus has shown some prominence within their own territory. The under-preparedness of Europe 57 and the United States 58 in response to Covid-19 can partly be attributed to delays in their early preparations to the disease, believing that (at least when the virus was predominantly in China) they would not be affected by its spread, especially when compared to the early response by neighbouring Asian countries (such as South Korea, 59 Hong Kong 60 and Singapore 61 ) which adopted extensive measures when news of the virus first began to emerge. This is not to say that Asian countries have not also made the same mistake, as their improved measures against Covid-19 are the direct result of fatalities from poor preparations and responses to past pandemics (2003 SARS outbreaks in Hong Kong 62 and Singapore, 63 and 2015 MERS outbreak in South Korea 64 ). The mindset that a virus is a purely internal matter for each individual country to handle on its own is not viable. As an international community, the political, social, and economic interdependence that countries have with one another means that the potential rate of transmission for viruses is extremely high. All viruses can be caught and transmitted by any one person, and each virus has the capacity to lead to a pandemic. It is thus necessary that all countries have an impetus to contribute to the management of the virus.
More than that, the initial place of an outbreak is not the only factor contributing to the extent of damage that a virus can cause. As Covid-19 has shown, despite the outbreak originating in China, the continued spread and evolution of the virus can be attributed to other countries’ poor handling of the virus and scientific evidence. 65 The emergence of the UK and South African variants of Covid-19 virus, which have proven to transmit more easily, 66 further demonstrates how the origin of a virus is far from the only factor that contributes to the perpetuation of a pandemic. To assign sovereignty of a virus based on the origin of an outbreak fails to acknowledge the overall series of events that allows a virus to spread and evolve and thus does not accurately reflect the role that every country has in preventing and combating the continued existence of infectious diseases.
Finally, classifying viruses as a common responsibility may potentially prevent a practice of assigning blame to any particular country for a virus, which in turn will have positive effects on how countries act, both as an independent body and with other members of the international community. If viruses were conceived as sovereign, it would consequently lead to viral epidemics being regarded as the ‘fault’ of the country ‘exercising sovereignty over the virus’. 67 Such attempts have already been made. Amidst the Covid-19 pandemic, various states from America have publicly sought legal compensation from the Chinese government, claiming that China ‘owed them’ for allowing the virus to spread. 68 This later led to other national bodies, including lawmakers in Australia, 69 as well as legal organisations like the International Council of Jurists and the Henry Jackson Society, to issue statements that insisted China be made accountable for its ‘responsibility’ for the virus in front of international organisation, including the United Nations Human Rights Council, 70 the International Court of Justice and the permanent court of Arbitration in the Hague. 71 In response, China has become increasingly defensive, thus heightening tensions between countries 72 in a time when, more than ever, international diplomacy and cooperation is key. Not only does a culture of blame assignment hurt current efforts in combating viruses, but it also disincentivises states from cooperation in the future. After the SARS pandemic in 2003, China came under intense scrutiny from the international community for its refusal to share its findings connected to the virus and for its alleged cover up of the initial outbreak. 73 In 2020, amidst the global Covid-19 pandemic, the world found itself in the exact same position once again. This begs the question – if states anticipate that they would be held legally responsible for viruses borne in their territories, surely more governments would supress and silence early evidence of viruses in attempts to avoid legal and political scrutiny. China has repeatedly been accused of ‘cover ups’ in its handling of the SARS 2003 outbreak and Covid-19. If true, such may be construed as self-serving, but they would also be the result of the current attitude of blame assignment that international society adopts. It is unreasonable to expect countries to openly acknowledge outbreaks if they will only be greeted by legal battles and compensation claims.
Viral sovereignty worsens this problem by creating one of the two scenarios for the international community: Either states are afraid of the repercussions that viral sovereignty may bring about, and thus refuse to share their findings, even hiding their findings to avoid international scrutiny, despite the fact that effective handling of a virus requires early evidence and research of viruses to be shared widely and openly, or it is precisely because viruses are viewed as a sovereign matter that countries use this ‘sovereignty’ as a means of justifying the withholding of information with regard to a virus (as evidenced in 2003 when China was questioned about early cover-ups regarding the SARS virus, and the government argued that viral sovereignty meant that any information regarding the virus was a purely internal matter that the international community had no rights to interfere in 74 ).
Both these scenarios hinder any early attempts to combat a disease, which is why viruses cannot be regarded as a sovereign being. 75 Classifying viruses as a shared responsibility of countries directly prevents both the aforementioned scenarios from occurring. It ensures that legal repercussions to any specific country are limited since liability for the spread of a virus is held by all countries. This removes the disincentive to share information, prevents countries from hiding behind the veil of sovereignty and requires them to cooperate in international efforts.
Conclusion
As a global society, we have reached a crossroads – how we choose to proceed from Covid-19 will greatly affect the impacts and losses of future pandemics. Attempts to exercise viral sovereignty have resulted in overwhelmed healthcare systems, underprepared governments and extraordinary losses. If countries continue to insist on viral sovereignty, either by exercising exclusive rights over viruses or by trying to deflect their own failures by forcing the blame of outbreaks onto others, there is no doubt that history will repeat itself and that we will face the same, if not worse, consequences from future virus outbreaks.
An alternative approach to viral sovereignty is thus necessary, and the characterisation of viruses as the shared responsibility of all countries is the first necessary step to preventing the recurrence of such devastating losses. Such a characterisation would not only prevent countries where the virus originated from holding the international community hostage for the sake of national demands but also curb the culture of blame assignment, thereby promoting greater international cooperation in efforts to prevent and end pandemics.
As the international community becomes increasingly interconnected and interdependent, it also becomes easier for viruses to spread across borders. Any virus has the potential to cause harm on a global scale, and despite the best efforts of every country, it is unlikely that they will be unaffected when an outbreak occurs. Regardless of where a virus may first appear, where it may first become infectious to humans or where it mutates into a new gene, all countries will suffer the harms resulting from a virus’ continuous spread, and at the same time, all stand to gain from its eradication. As Professor Tasuku Honjo
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has commented during the ‘Covid-19’ pandemic: At this stage, when all of our energies are needed to treat the ill, prevent the further spread of sorrow, and plan for a new beginning, the broadcasting of unsubstantiated claims regarding the origins of the disease is dangerously distracting.
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Footnotes
Declaration of conflicting interests
Funding
ORCID iD
