Most of the time the sanctity of national sovereignty is invoked in international law, it’s covering for something bad. The debates about the interpretation of the Nagoya Protocol, a 2010 supplement to the Convention on Biological Diversity, are no exception.
A number of states party to the Protocol, a cryptic document designed to ensure the “fair and equitable sharing of benefits arising from the utilization of genetic resources,” enshrines a principle of state sovereignty over the genetic sequences of all life—including those of pathogens—within state territory.
This interpretation is not obvious on the face of the treaty. But neither is it foreclosed. The resolution of this question has profound implications for global public health: if the states that espouse this position are right, global genetic research will be impeded, possibly dramatically, and epidemics will be harder to fight.
Luckily, they’re wrong.
There are only two plausible ways that the Nagoya Protocol could extend absolute state control over genetic sequences: it could either conceptualize such power as an element of sovereignty or as a state proprietary interest. The former is incoherent as a matter of political theory, and the latter as a legitimate state property claim.
Even in its most extreme classical conceptions, sovereignty is at most absolute power over people, not things, much less abstractions such as genetic sequences, which exist entirely independently of the grace of the sovereign.
The proto-totalitarian Rousseau argues that when a purportedly sovereign entity loses touch with reality or the general will it ceases to be sovereign. Hobbes conceptualizes sovereignty as the subjugation of the human wills of the population into the person of the sovereign. There’s a reason for this limitation. Despite the modern legal gloss on the concept of sovereignty in modern international law, sovereignty is not really a legal concept. It is an actual exercise of absolute power. It is the essence of the political, the power of a monopoly on violence to influence behavior. All the great theorists of sovereignty, Aristotle, Plato, Cicero, Bodin, Hobbes, Rousseau and Schmitt are in accord on this point. Sovereignty is not something which can be set out in constitution or statute, much less in international treaty. Either absolute power is there, or it is not there.
In this light, it is clear why it would be absurd for an international agreement to purport to extend state sovereignty over genetic sequences. Genetic sequences are not people. They are not even alive. No monopoly on violence, however large, can obtain power over what are simply arbitrary facts about nature, that no doubt preceded the sovereign and will likely long outlast him. As well as claim state sovereignty over storms, the rotation of the earth, or the electromagnetic spectrum. Where there is no power there can be no sovereignty. To hold otherwise would be to embrace the mad ravings of none other than Caligula. States do not have any sovereign claim over genetic sequences, wherever in the world organisms with them are to be found.
Nor do states have a legitimate property interest in genetic sequences. No one does. As the U.S. Supreme Court reasoned in Ass’n for Molecular Pathology v. Myriad Genetics, genes cannot be patented for essentially the same reason that they cannot be subject to sovereignty: they are just pre-existing facts about the world. State or no, it makes no sense (as lucrative as it might be) to assert an ownership interest in the speed of light or the Higgs boson.
There are two appealing analogies that proponents of the view that states ought to have some kind of a proprietary interest in genetic data from organisms within their borders. Neither is apposite.
First, it is tempting to compare foreign scientists extracting genetic information to foreign companies mining natural resources, which, of course, has been very controversial in developing countries. But regardless of where one stands on that debate, it’s fundamentally about the allocation of zero sum resources, not the understanding of something that already exists.
If there is an oil deposit in a country, that oil revenue is either going to foreign companies, or a state run oil company, or both. That simply isn’t true of sequence data associated with genetic resources. They are just information—information the knowledge of which does not remove it from reality but in fact the opposite.
Second, there is a cursory similarity between richer countries appropriating the genetic data of poorer countries and the same happening with respect to their cultural resources. But, in fact, this comparison illustrates my point more clearly. Perhaps Egypt has a legitimate claim to possession of the Rosetta Stone. There are arguments on both sides of that point, and there coherently can be objects, including stones, in which states can have a proprietary interest. But Egypt has no claim to Egyptology, or to the information that the world has learned from the Rosetta Stone. If you decide to take up hieroglyphic calligraphy as a hobby, you do not (and, I would surmise, no one would argue that you should) owe a royalty to the Egyptian government. It’s the latter that we’re talking about in this context.
The redistributive intuition of interpreting the Nagoya Protocol to apply to sequence information is appealing. But it makes no sense. And more importantly, it will put lives at risk in times of disease.
James Toomey is a 2018-2019 Petrie-Flom Center Student Fellow.
