IILJ Director Benedict Kingsbury published his article ‘Attributive Justice in International Law: The Global Law and Infrastructure of Pathogen Genomic Sequence Data-Sharing and Benefit-Sharing’ in the Summer 2023 issue of NYU Journal of International Law and Politics.
Abstract
A succession of epidemic diseases among humans in the first decades of the 21st century renewed long-standing controversies about power imbalances and justice in the global production, use, and distribution of scientific data and its benefits. A new area of contention concerns digital genomic sequence data (GSD). The largely-forgotten idea of ‘attributive justice’, articulated by Hugo Grotius (1625), helps make sense of otherwise-disparate demands for GSD justice.
At least two kinds of attributive justice claims are made in relation to GSD. One is for attribution of credit to scientists and others involved in medical services or other procurement of samples—a scientist-focused attributive justice. These claims are mobilized especially in efforts to rectify existing power and resource imbalances in science production, both within national societies and by scientists from developing country. These claims have considerable traction, but not in formal international law.
A second claim relates to demands by developing countries either to control GSD, or at least to receive benefits from commercial use of it when the underlying biological sample originates specifically in their territory. These claims have been pursued in efforts to extend the 2010 Nagoya Protocol. Other existing or pending international treaty regimes embedded in entirely separate institutions also address benefit sharing in relation to oceanic, plant, or human digital sequence sharing, complicating the formation of a coherent or unified set of rules. Contentions about widely used sets of data- governance principles such as Findable, Accessible, Interoperable, and Reus- able (FAIR) data also arise in each treaty regime.
Infrastructural regimes for the sharing of sequences have become major sites for both the scientist-relative and state-relative attributive justice claims. The most widely used platform for access to GSD of all kinds is the International Nucleotide Sequence Database Collaboration (INSDC) (including GenBank). A leading alternative is GISAID, which is similar in being free to use but conditions GSD access and sets requirements for attribution of
scientific credit. While GISAID goes further than INSDC in supporting scientist-relative attributive justice claims, the two infrastructures are broadly similar with regard to state-relative claims for attribution of GSD and benefit-sharing. The infrastructures have recently begun trying to ensure that metadata accompanying each sequence attributes it to samples taken from a particular country, but not that the GSD is systematically linked to its com- mercial outcomes. These infrastructures embed norms and ideologies of their original builders, such as a normative commitment to ‘Open Science’, and the economic and epidemic-security interests of richer OECD countries.
Attributive justice entitlements of particular scientists and states will not leverage universal principles of distributive virus- and vaccine-justice but are reinforcing significant shifts toward orders of respect and recognition in global health research and (slowly) in sequencing infrastructures. The contributions of attributive justice have been underestimated.