Thanks to Greg Folkers for sending the link to this article in Foreign Affairs: Who Owns MERS? It's a detailed discussion. Excerpt:
This dispute raises three broad legal issues. The first involves information sharing: MERS triggers obligations under the International Health Regulations (2005), a treaty binding on all WHO members, to notify WHO of disease events that might constitute a public health emergency of international concern (MERS qualifies) and to share with WHO information about such events. As the outbreak has grown, global health concerns about Saudi information sharing, especially when it comes to cases occurring in Saudi Arabia, have increased.
All this raises questions about Saudi compliance with the IHR. To date, WHO has not accused Saudi Arabia of violating those regulations; rather, it has pressed Riyadh to provide more information about MERS cases within Saudi Arabia and stressed the importance of transparency in the implementation of the IHR. But patience has been wearing thin.
Second, the controversy involves disputes about ownership of the MERS virus, and the implications of ownership on the international response to the outbreak. Saudi Arabia has not yet appealed to “viral sovereignty,” the argument that Indonesia advanced during the 2007 controversy over sharing avian influenza A (H5N1) samples, namely that the state in which a virus is isolated has sovereign rights over that virus under international law, specifically the Convention on Biological Diversity.
But Riyadh’s complaints echo this reasoning: Zaki violated Saudi law, Riyadh says, so Erasmus is benefiting from an illegal act. If Saudi Arabia has sovereign rights over the sample, moreover, Erasmus is ignoring these rights and engaging in a form of “biopiracy” by exploiting a Saudi genetic resource without Saudi consent. This argument implicates the Dutch government because the Netherlands and Saudi Arabia are CBD parties, and the Dutch government has not intervened to protect Saudi Arabia’s rights recognized by this treaty.
The third matter, which has received the most attention, involves the claims that the Erasmus MTA and patent application are hindering research on, and responses to, the MERS virus and outbreak. These allegations focus on the impact of Erasmus’ behavior on global health efforts rather than its legality, but this fact seems to be a symptom of a bigger problem.
The International Health Regulations do not include rules covering the sharing of viruses and benefits produced from virus research. The closest thing, the non-binding agreement negotiated to govern those concerns for influenza viruses -- the WHO’s 2011 Pandemic Influenza Preparedness Framework -- does not apply to coronaviruses.
Leaving aside for a moment the lack of specific rules, the more urgent question is whether the Erasmus patent application and MTA are harming global health responses to MERS. Erasmus has only filed an application for a patent; it does not have one at the present time. And an application does not create enforceable rights. As a matter of law, then, the patent application itself is not a hindrance to Saudi Arabia, other affected countries, or WHO.
