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 2007 the Indonesian government claimed sovereignty over the H5N1 influenza virus samples isolated within Indonesia’s territories, refusing to share those samples with the World Health Organisation. Indonesia’s sovereignty claims conflicted with the decades-long practice of sharing influenza samples with the WHO, and was seen as an affront to scientific norms of cooperation and openness. The conflict was ostensibly resolved in 2011 with the introduction of the WHO’s Pandemic Influenza Preparedness Framework (PIP Framework), which was intended to secure access to influenza viruses from around the world and effect a fairer distribution of vaccines and other benefits associated with the use of pandemic influenza samples. The problem is, the PIP Framework did not resolve the issues created with the concept of viral sovereignty. In fact, by recognising the sovereign rights of states over this subset of pathogens, the PIP Framework legitimised viral sovereignty as a broader legal norm. Instead of resisting this concept, the WHO quietly acceded to it and reinforced a set of perverse incentives for countries to restrict access to pathogens precisely when those pathogens embody the greatest value: during a public health emergency. This chapter demonstrates that the concept of viral sovereignty did not begin with Indonesia in 2007, and more importantly, it did not end with the PIP Framework in 2011. Despite the term “viral sovereignty” fading into relative obscurity, the concept itself is now an established legal norm that could delay efforts to save lives during epidemics and pandemics.