Hi,

Complex policy challenges such as designing a new Pathogen Access Benefit Sharing system for global health, require focus to square the big principles with the technical details that would make such a mechanism workable.

Yet, it might serve to take a step back and also look at how other policy forums that have wrestled with similar questions.

I am very pleased to present a timely and comprehensive guest essay on the lessons for PABS from the recent negotiations on the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement.

Siva Thambisetty, a scholar from the London School of Economics has worked with several delegations in shaping key features of the BBNJ agreement. In today’s edition, she has painstakingly drawn out suggestions, and cautions against pitfalls that could play out in the PABS talks - based on her first hand experience at BBNJ.

Many weeks in the making, we hope you find this analysis useful. One can also download this paper (at nearly 5,000 words!) as a pdf. Scroll below.

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More soon!

Best,

Priti

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I. GUEST ESSAY

Is There a Third Way?

Lessons for PABS from Parallel Treaty Contexts

By Siva Thambisetty

Thambisetty is an Associate Professor of Law at the LSE, and is the Lead for the Ocean Biodiversity Collective funded by the LSE Knowledge Exchange and Impact Initiative. She can be contacted at s.thambisetty@lse.ac.uk.

The PABS Annex negotiations suffer from the ills of the access and benefit sharing (ABS) framing in international law, which functions like a sponge soaking up many different kinds of unresolved moral and policy goals.[1]Empirical evidence indicates that in practice, benefit-sharing rarely achieves its stated objectives.[2] A compensatory model for access to genetic resources would be akin to selling genetic resources for value, but genetic resources have multiple forms of present and future value⁴ making contractual enforcement of such a model almost impossible. A distributional justice model requires political will to prevent ‘unjust enrichment’ and redistribute the gains evenly. Even the most enlightened developed state will hesitate to demand this outcome from private industry; and heavy-handed mandatory rules have simply not materialised in this space. A corrective model requires substantive legal doctrine which has also not been forthcoming given the disparate approaches over Digital Sequence Information (DSI) in parallel treaty contexts. Even within this limiting ABS frame, there is an opportunity to correct some conventional modalities that hurt the likelihood of benefit-sharing, while co-opting beneficial pathways such as existing scientific communities or public technical infrastructure.