After biosovereignty: The material transfer agreement as technology of relations

MTAs as political leverage: Sovereignty amidst global governance systems

Toward the end of 2006, Indonesia was deeply mired in the Avian Flu (or H5N1) epidemic. Cases and fatalities had risen, and data indicated that the new wave involved human-to-human transmission. It was in that context that the Minister of Health, Siti Fadilah Supari, made global headline news by announcing, during the 2007 WHO International Governmental Meeting (IGM) in Geneva, that Indonesia declared ‘viral sovereignty’ over its virus samples (Latifah, 2015; Sedyaningsih et al., 2008). ² Indonesia specified it would continue to share virus samples for diagnostic purposes, but insisted that any commercial use of the sample—for instance for vaccine production—would require the permission of the country where the sample originated (Irwin, 2010; Sedyaningsih et al., 2008). ³ Informing Indonesia’s refusal was Supari’s assumption that the WHO had provided an Australian biotech company with a vaccine strain from Indonesia, which in turn developed and patented a vaccine without informing or collecting consent from Indonesia.

According to Lowe (2010, p. 160), Supari’s knowledge of this transfer was incorrect. In fact, the Australian biotech company used an open-source genetic code that they had obtained legitimately from GenBank, the genetic sequence database from the US National Institutes of Health. Siti Fadilah Supari, it should be noted, is a phenomenon in her own right. Her actions in her role as the Indonesian Health Minister have turned her into an iconic figure in Indonesia’s public and popular culture. She is known, both inside and outside of Indonesia, as a controversial figure, believing in conspiracy theories, including one that assumed strains of viruses were being produced to do damage to Indonesia and that NAMRU-2 (a biomedical research laboratory of the US Navy located in Jakarta) housed American spies intending to gather intelligence for the US (Lowe, 2010, p. 161). Despite her conviction on charges of corruption—leading to a four-year jail term that she recently completed—and her widespread assertions during the COVID-19 pandemic that Bill Gates and the US had a role to play in the spread of SARS-COV-2, she was well-liked by the Indonesian public, supported by high-profile celebrities, and given a substantial media platform to voice her opinions. For the developed world and their self-proclaimed guardians of science it was easy to dismiss Supari’s credibility and authority considering her corrupt and conspiracist context.

However, there was legitimate cause for Supari and Indonesia to be concerned. The US Naval Medical Research Unit Two—known as NAMRU-2—was established as early as 1944 and stationed in different places in Southeast Asia. Its primary aim was to conduct research on infectious diseases within a broader framework of US military security. Since the early 1970s, their headquarters have been in Jakarta, literally in the building of the Indonesian Department of Health. The laboratory has been successful in identifying tropical diseases, but according to Supari, Indonesia had not benefited from these successes. On the contrary, while Indonesia was sharing virus samples, NAMRU-2 did not share any of its findings with its host country.

Moreover, in the recent years preceding the event with the WHO, NAMRU-2 received from the US government a very substantial amount of funding exclusively reserved for research on viruses with pandemic potential. This rearranged local public health priorities, where endemics, such as the mosquito-borne viral diseases malaria and dengue fever, had many more victims than pandemic viruses (Lowe, 2010, pp. 154–158). Careful science diplomacy was crucial for the status of NAMRU-2 in Indonesia, but seemed to have backfired at several important moments (Smith, 2014). In September 2008—amid the negotiations with the WHO around virus sharing—Indonesia halted the activities of NAMRU-2. Beyond the impact that NAMRU-2 had on domestic politics, NAMRU’s presence was—especially in its final iteration as a hub for biosecurity—symptomatic for the dynamic informing the securitization of infectious disease.

Returning to the event, the WHO admitted that the samples used by their collaborating labs were transferred to pharmaceutical companies, those that were able to patent the vaccines they helped develop. This system—the Indonesian Minister of Health argued—keeps life-saving pharmaceuticals out of reach for poor countries: ‘[W]e must work together to change the perverse incentives that have resulted in developing countries being disadvantaged’ (Gelling, 2007). This argument hit a chord in many developing countries, where people were familiar with the failure of global governance to address issues of access to medicine and global inequality in general. The timing seemed right for developing countries to push back—Indonesia was backed-up by many other countries in the Global South, including Thailand and India (Sophal & Quitzon, 2020).

Global public health experts and policy makers were outraged by the act and accused Indonesia of ‘moral blackmail’, putting people’s lives across the world at risk. In the Washington Post, the American diplomat Richard Holbrooke and the science journalist Laurie Garrett strongly condemned the action by Supari, calling it an ‘extremely dangerous idea’, and pressed the international community to form solid action against it (Holbrooke & Garrett, 2008). The outrage represented a more general attitude within the WHO and the global health community that their 60-year-old system of virus sharing—the Global Influenza Surveillance and Response System (GISRS) ⁴ —and the paradigm of global solidarity in general, was taken hostage by claims of state sovereignty.

The technical heart of the debate between Indonesia and the WHO was the MTA. While Indonesia insisted that MTAs govern virus samples, the WHO refused (Supari, 2008, pp. 40–43, 185) . The US was a vocal backer of the WHO’s stance. During a visit to Indonesia in 2008, the US Health and Human Services Secretary Mike Leavitt accused Indonesia of linking the sharing system with a payment system:

We cannot be party to an arrangement that will undo 60 years of one of the world’s great public health successes. … Linking sample-sharing to payment in any form will immediately begin to erode our ability to make vaccines at all, because once the practice of free and open sharing of viruses stops, the slope is slippery, and there will be no end to the demands. (Taipei Times, 2008).

The US and the WHO used moral justifications to resist the introduction of MTAs to the virus sharing system. In practice, however, the WHO was already using MTAs. Their collaborating centers and reference laboratories in developed countries—namely in Australia, Japan, the United Kingdom, and the United States—used MTAs in their interactions with companies or institutions outside of the WHO.

Claiming the moral high ground by maintaining that virus samples should circulate freely for the common good, while using MTAs in their own transfer practices, did not sit well with the Indonesian Minister of Health. Although the WHO’s mission goes against partaking in profit-making endeavors, its entering into these contractual and legal arrangements forces a direct entanglement with the global bioeconomy. The Centers for Disease Control (CDC) in the US, for instance, is also a collaborator with the WHO and has entered into MTAs with companies when transferring vaccine strains containing portions of viruses contributed by developing countries such as Indonesia, Vietnam, and China (Third World Network, 2007). As developing countries point out, such situations clearly indicate that double standards are at play: While source countries are told to give their viruses freely and to not enter MTAs, WHO centers and laboratories (all located in developed countries) are signing MTAs with pharmaceutical companies that in turn patent their vaccines.

The demand for MTAs during this standoff should be seen in the context of three important global political histories that have led to distinct global governance systems: the globalization of intellectual property rights, the securitization of infectious disease, and the global protection of biodiversity. Indonesia was not the first country in the Global South to resist some of the implications of these global regulatory frameworks. Ever since it became apparent that intellectual property rights were hampering rather than advancing developing countries—specifically concerning access to medicine and vaccines—there has been a concerted effort by countries in the Global South to appeal against these institutional structures.

The first of these histories concerns the expansion of intellectual property rights via the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), that came into force in 1995. Advocated by US economists and lawyers, TRIPs commercialized science on a global scale through the consolidation of intellectual property (IP) instruments. Established to facilitate bioscientific and medical innovation globally, the expansion of IP rights from the North (though particularly from the United States) to other parts of the world has been robustly studied by political scientists and legal scholars (e.g. Drahos & Braithwaite, 2001; Dutfield, 2003; Mathews, 2002; Sell, 2003; Tyfield, 2008). This scholarship shows that TRIPs ultimately failed to incentivize infrastructural development for developing countries, those that could improve self-sufficiency in health care delivery, bioscience innovation, and localized drug discovery.

The second relevant global political history concerns developments in global health characterized by the increased securitization of infectious disease. In the past two decades the securitization paradigm was sealed by reforms made to the International Health Regulations (IHRs) in 2005. ⁵ According to critical legal scholars, these reforms have particularly strengthened Global North countries in their protection from infectious disease emanating from the Global South. This ‘new public health world order’ has far-reaching consequences for state sovereignty (Phelan, 2020, p. 132; see also Fidler, 2001; Fidler & Gostin, 2006; Mack, 2006). Moreover, global health law continues to prioritize intellectual property rights, allowing pharmaceutical companies to enforce their patents regardless of public health emergencies. The securitization paradigm prompted by the reforms made on the IHRs had immediate and practical consequences regarding funding allocations for health and bioscientific research. For Indonesia, the continued loss of sovereign control over health priorities by way of US and global security imperatives deeply influenced the impasse with the WHO (Elbe, 2010; Halabi & Katz, 2020; Hameiri, 2014; Lakoff, 2015; Lowe, 2019).

Finally, the third global political history informing the standoff concerns developments in public international law around bioprospecting; the exploration and collection of organic, plant, genetic, and biochemical material to develop commercial products (which could range from pharmaceutical and biomedical technologies to cosmetics). The UN Convention for Biological Diversity (CBD), ratified in 1992, laid down new rules around bioprospecting, clearly recognizing the sovereign right of States over their biological resources. ⁶ The Nagoya Protocol in 2010 cemented the CBD by introducing access and benefit-sharing (ABS) principles. These principles assume the responsibility of the global science community (in the North) to ‘give back’ to states and communities (in the South) that have provided knowledge, materials, or information. ⁷ MTAs became the assigned legal instruments to secure these principles. While many researchers in the North are yet to reconcile these new rules of scientific exchange, pharmaceutical companies have incorporated ABS principles in their research process and business model, though with diminutive benefits to the communities involved (Hayden, 2003, 2007b; Parry, 2004). At the same time, developing countries struggle to implement these new rules in their domestic laws, pointing to the lack of legal expertise and resources to train lawyers (see Thaldar et al., 2020 for the case of South Africa). Even after 20 years of the CBD’s existence, actual benefits have been either scarce or non-existent (Hayden, 2003; Parry, 2004, p. 255). According to Parry, an explanation to this failure can be found in the fact that global governance systems have a two-fold and dual or contradictory function:

On the one hand, they have been introduced in order to facilitate the exchange of information-based goods and services through the development of new markets and avenues of exchange. At the same time, they are also increasingly relied upon to restrict the unlicensed use and circulation of these same resources. (Parry, 2004, p. 6)

These distinct global governance systems—TRIPs, IHRs, and the CBD—emerged independently, each with their own philosophies, aims, and methodologies, but are increasingly brought into close concert with one another. This interfacing is far from seamless, as exemplified by efforts in the Global South to challenge IP regimes in their quest to broaden access to essential medicine and vaccines (Ecks, 2005; Hayden, 2007b; Pollock, 2014). This was epitomized during the Covid-19 pandemic. Despite the promise of supranational regulation, and despite the collective global effort that went into the production of key Covid-19 vaccines (including clinical trials in the South), vaccine nationalism and IP claims continue to militate against the equitable distribution of vaccines and act to reproduce longstanding global health inequalities (Elbe, 2021; Phelan, 2020, p. 132). More importantly, they threaten to substantially inhibit Southern states’ ability to create more robust scientific institutions, R&D models, and laboratories of their own, and thus to improve infrastructure post-pandemic.

During the standoff, the WHO accused Indonesia of not adhering to the then newly revised IHRs, under which—they claimed—every country is expected to share public health information that is deemed essential in times of emergency. ⁸ In its defense, Indonesia relied on the CBD as a legal justification for their refusal. What Indonesia accomplished with the standoff was to bring the biosovereign principle of benefit-sharing—formally endorsed and legitimized in the CBD—to the arena of global health and clinical research. MTAs have been around in developing countries and used as the preferred legal instrument to govern biodiversity samples following the CBD. It was not until the Indonesian case of viral sovereignty, however, that the CBD and MTAs were invoked within the space of public health (Fidler, 2008).

Dismissing the CBD as a valid legal justification for withholding virus samples, representatives from the WHO and developed countries argued that viruses—unlike biodiversity material—naturally cross borders and cannot be subjected to claims of sovereignty. They insisted that MTAs would slow down the process of transfer, thereby stifling urgent research for pandemic responses, and also weaken incentives for pharmaceutical industries to invest in vaccine development. The authority of science, and not the sovereignty of states, they argued, should be the political norm guiding the governance of biomaterials and information in a health emergency. Hurlbut (2017) describes this dual imperative of free science and free-flowing information as laying claim to its own form of sovereignty: ‘Scientific authority occupies a constitutional position insofar as it figures centrally in the repertoire of imaginaries that shape how a global community is imagined: What binds that community together and what shared political commitments, norms, and subjection to delegated authority are seen as necessary for it to be rightly governed’ (p. 1, emphasis added).

The persistence of Indonesia, combined with the sustained support from other countries in the Global South, eventually led the WHO to introduce the so-called Standard Material Transfer Agreements (SMTAs) into the PIP Framework. This allowed pathogens (though not all pathogens, more on this later), like biodiversity material, to fall under the remit of benefit sharing principles. ⁹ In his analysis of the Indonesian case, Hurlbut emphasizes the role the imperative of an autonomous science played in the debate, not only for the WHO, but also, ultimately, for Indonesia too. For him, the SMTAs adopted by the PIP Framework reaffirmed the scientific norm that biological materials should flow freely. By accepting the PIP Framework and the structure of the SMTAs, Indonesia in fact ‘surrendered its claim to viral sovereignty in deference to—and in order to associate itself with—sovereign science’ (p. 7). The PIP Framework as resolution can therefore be seen as exemplifying the strength of a post-national and post-political imaginary of global science governance.

The next two sections, however, complicate the idea of ‘surrender’ and offer an alternative understanding of MTAs within and beyond the PIP Framework, and as set against the backdrop of Southern demands. While the paradigm of open science is a well-rehearsed script in the (sovereign) authority of global science, it is precisely the definition of ‘global community’ and the question of who gets to define what and when materials are ‘rightly’ governed that is central to many of the disputes informing southern countries’ claims to biosovereignty (Ong, 2008, 2016; Ong & Chen, 2010). Yet biosovereignty itself is not the end goal. Instead, these appeals can more aptly be described as attempts to create ‘a room of their own’ within the global playing field of bioscience (Séguin et al., 2008) or as a form of ‘postcolonial science policy’ (Benjamin, 2009). A biolegal study of MTAs allows us to identify the emergence of the ‘global postcolonial’ (Sunder Rajan, 2013), forming communities and imaginaries through the appropriation of legal instruments.

MTAs as biolegal commoning devices: Making the PIP Framework

MTAs for bioprospecting are more heterogeneous than MTAs in the biomedical world, because they include clauses pertaining to sovereign rights, consent, and benefit-sharing arrangements (Gollin, 2002; see also Pottage, 2006). While the provider and receiver in the biomedical world involve scientists, technology managers, or tech officers in companies or universities, in the space of bioprospecting the situation deviates significantly from these privatized contexts. As the sovereign state is party to the control of biological resources, a ‘community’ is required for the contracts governing biodiversity material: indigenous groups, tribes, ethnic affiliations. According to Hayden (2007a), the production of ‘community’ in the CBD—as opposed to the autonomous individual in conventional bioethics—is an attempt ‘to re-authorize bioscience participation as an act that exceeds the gift but that cannot proceed, unleashed and unchaperoned, directly to [the] market, (2007, p. 746). Transfer, then, becomes entangled in a particular tension, one that tries to balance the space of markets and gifts.

MTAs in the context of virus-sharing, and as materialized through the PIP Framework, follow an altogether different process. The PIP Framework makes a distinction between two standard MTAs, namely SMTA1 and SMTA2. SMTA1 organizes the sharing of virus samples with pandemic potential among the laboratories within the Global Influenza Surveillance and Response System, and SMTA2 are used when materials are sent to laboratories or entities outside of that system. This division splits the ‘access’ component (SMTA1) from the ‘benefit’ component (SMTA2). In the formulation of SMTA1, the provider is not attached to a community but to the nation-state (see also Hinterberger & Porter, 2015). In contrast, SMTA2 untethers the material, disconnecting the source country from the material, which allows companies and universities to provide the benefits to the WHO rather than the source country. Besides the economic change to materials described earlier, this splitting of the SMTAs—seen by legal scholars as an innovative legal strategy—also has the biolegal effect of changing the subject of benefits, morphing the recipient of benefits not to the state or even community, but to a broader imaginary of Southern beneficiaries.

It is worth focusing on the term ‘standard’ here, which mostly concerns the use of universal templates to streamline the process and to avoid unnecessary delay. ¹⁰ Yet STS scholarship shows that category-making processes such as ‘standardization’ do much more than just create new categories; they make mobility possible through the removal of local uncertainties (Latour, 1986; Star & Griesemer, 1989). Standardization does not merely turn ‘negotiation’ or ‘agreement’ into workable bureaucratic forms, it also loosens the flow of some materials over others. In our case, the standardization of MTAs allows for the transfer of influenza samples with pandemic potential. It leaves all other pathogens under the responsibility of the CBD (Rourke, 2017, p. 3). This produces different legal statuses for materials. ¹¹ Contrary to material derived from plants, organisms, or bacteria, virus materials with pandemic potential often derive from human bodies and are considered human pathogens, which follows a different and more strenuous research ethics protocol. Within the context of (future) pandemics, the value attached to virus samples (and their bioinformation) increases astronomically. The speed of the transfer will affect this value as time plays a crucial role in pandemic responses impacting how quickly vaccines and drugs can be developed, but also, influencing decisions about border closures and lockdowns. The high stakes of virus material with pandemic potential suggests that ‘standardization’ does not merely smoothen the process but also prevents a more onerous system, one for instance, where different localities have different requirements (as is the case with bioprospecting agreements).

While SMTA1 and SMTA2 can be applied to the same biological material, the value of these materials changes once an SMTA2 is commenced between the WHO and an outside party. With SMTA1 the pandemic potential of the material is still under scrutiny; once an SMTA2 is needed, the pandemic potential has been established, and is therefore of immense worth to research institutes and companies ready to patent their findings for future capitalization. By creating different agreements depending on the status of the material, the value and economy of materials shift. ¹² The splitting of SMTAs reveal the stakes regarding the ontology of viral material. Viral matter is not the same as plants, those biological materials that fall under the remit of the CBD. The split represents not only the negotiation, but also the making of a new social and political order around who is allowed to make a market out of viral material and under what circumstances.

We can argue that with MTAs—either in bioprospecting or in virus-sharing—there exists no actual exchange or circulation of scientific material. The ‘transfer’ in material transfer agreements is unidirectional, the material moves from the source country to the WHO and from there to an entity outside of the Global Influenza Surveillance and Response System. While the guidelines of the PIP Framework suggest that there is a quid pro quo between sharing and receiving benefit, the different conditions attached to the two SMTAs uncouple this link. Benefits are negotiated in the agreement and include diagnostic kits, medical equipment, technology transfer, medicine, or vaccines. These benefits, however, go to the WHO and not directly to the source country. ¹³ The MTA does not initiate scientific exchange but is merely transferring, and not circulating, materials. Such a situation precludes materials from returning to their country of origin. One can imagine that Indonesia and Indonesian scientists would benefit from the return of samples, to continue research. This was in fact one of the strong appeals of countries in West Africa (Guinea, Liberia, and Sierra Leone) that insisted on the return of Ebola virus samples in the aftermath of the 2014-16 Ebola crisis. After thousands of Ebola samples were sent to laboratories in the Global North, there was very little information about what happened with the samples. ¹⁴ Liberian scientists failed in their attempts to conduct their own research on Ebola, as they were unable to obtain samples gathered previously in Liberia (Krohmal, 2020, p. 52.)

In a paradoxical manner, MTAs in the making of the PIP Framework work as ‘commoning devices’, legal technologies aimed at preserving the ‘science commons’. But here, the commons assume different communities at the same time. While the ‘global science/health community’ believed MTAs would hinder science, Indonesia’s insistence on these contracts saw them construct MTAs that allowed the flow of materials without the cumbersome processes that are characteristic of the transfer of biodiversity material. The PIP Framework can be seen as successfully preventing what has been termed ‘the tragedy of the anticommons’ (Heller & Eisenberg, 1998). Here, the standardization, specification, and categorization of MTAs function to limit the varieties and uncertainties tainting MTAs in the biodiversity world, those considered to give rise to ‘too much ownership’ (Pottage, 2006). At the same time, Indonesia, and developing countries in general, agreed to these constructions but for different motives. Not only did the PIP Framework bring benefit-sharing components to the realm of virus-sharing, but its structure also allowed the emergence of a ‘global postcolonial commons’.

Referencing the postcolonial theorists Mbembe (2001) and Boltvinik and Laos (2000), Hayden argues that transfers in bioprospecting occur in the ‘precarious space between “not-rights” and “what is right” … the distribution and allocation of resources and entitlements when political subjectivities are unmoored from the forms of citizenship and rights so dear to liberal political theory’ (Hayden, 2007a, p. 747). She further states:

Transfers, allocations, and distributions are terms that take us out of the artificially isolated spheres of market and exchange, and gift and commodity. They remind us that the sharing of benefits is also an idiom of politics, social contracts, and conflicting traditions of thinking about the state, too, as that which performs and regulates acts of taking and giving back. (p. 747)

The inventiveness of the PIP Framework attests instead to a possibility of bringing the state in and taking it out, while—at the same time—reconciling divergent imaginaries of the science commons. Regardless of its effectiveness, the implementation of SMTAs is not a surrender of developing countries to the sovereignty of global science, but an affirmation of how legal contracts can function as devices that bring relations into existence. An attentiveness to the postcolonial acknowledges this performative aspect of MTAs. The final legitimating framework explained in the next section gives further substance to the potential of MTAs, one that forces, rather that severs, the relation between global science and the global postcolonial.

MTAs as property relations: Grounding helicopter research

Any primitivist prejudice likely to flourish with the rhetoric of intellectual property could simply be entrenching an a priori diversity, that is, the sense that the world is already culturally different: ‘their’ intellectual property is cultural tradition, invented long ago; ‘our’ intellectual property is a still productive, progressive, irresistible, technological inventiveness. (Strathern, 1999, p. 200)

Strathern’s incisive statement describes an implicit, albeit institutionalized, belief within IP systems that what we call invention in bioscience and biotechnology primarily happens (or can only happen) in the wealthy North. In contrast, the South assists in productive invention by contributing with their indigenous knowledge or biological resources. This belief is institutionalized by being embedded in the regulatory orders that have emerged in the past four decades to facilitate the global governance of bioscience. Most clearly is the principle of benefit-sharing which assumes the responsibility of the Global North to ‘give back’ to the Global South.

Beyond the issue of remuneration (to combat global inequality), something else is at stake that explains the demand of developing countries to secure MTAs. At the root of the rhetoric on intellectual property and benefit-sharing lies the issue of epistemic violence. Benefit-sharing will not remedy this violence. But MTAs include conditions other than the promise of redistribution: They can also control authorship. This is a leading concern for Indonesia and other countries in the Global South (Grove, 2022). Over the past decade, several high-profiled cases have revealed the extent to which foreign researchers were not only exporting biological specimens without consent, but were also publishing their findings without acknowledgement of their Indonesian collaborators. This kind of ‘helicopter research’ (Costello & Zumla, 2000, n. 85)—observed by local researchers as taking place throughout Global South countries or in indigenous communities across the North South divide—has long been criticized, but apart from individual efforts by scientists, these occurrences have not been adequately addressed.

As mentioned above, in April 2018, the Indonesian and international press reported on a case in which a research team from Denmark and the United States collected biospecimens from the Bajau people on the Togean Islands in Indonesia and brought them to a laboratory in Denmark without the adequate ethical approvals in place. ¹⁵ The research, a fascinating study about genetic adaptation in people who acquired the ability to stay under water for a prolonged amount of time, did not involve close collaboration with Indonesian partners. Their publication in the prestigious journal Cell did not include Indonesian authors. The Indonesian scientific community accused the foreign researchers of conducting helicopter research without adhering to local regulations, and without acknowledging the work conducted by Indonesian researchers (Rochmyaningsih, 2019a). For Indonesia this was another incident indicating that MTAs be regulated more strictly.

In an effort—among other things—to stop ‘helicopter research’ and stimulate domestic innovation, Indonesia designed and in 2019 ultimately passed the Indonesian National System for Science and Technology Law. The law includes a near ban on the export of biological material, with criminal sanctions for errant foreign researchers. It secured the MTA as preferred instrument to control the transfer of materials and issued new research visa rules that required formal collaboration with Indonesian counterparts. Foreign scientists wanting to conduct research in Indonesia fear that these new laws will further complicate the collection of biological material, pointing to how MTAs will demand manifold obligations with different people and institutions, and will put in place unwieldly restrictions to control publication of findings. But within the context of the Global South, might we not view these multiple obligations as introducing and forcing a mode of property relations? While the argument has been made that MTAs will hinder science, preventing foreign researchers from even coming to Indonesia anymore, they can also force foreign researchers to collaborate more seriously with Indonesian researchers and to find ways of investing in Indonesian research capacity.

According to an econometric analysis by Onofri (2014), there are a few interesting things to say about the determinants that affect the payment mechanism in MTAs. Examining MTAs from the late 2000s, obtained from the World Intellectual Property Organization (WIPO) and the CBD, Onofri shows that the presence of an ‘acknowledgment obligation’ to the provider of the material creates a situation in which a payment scheme can be avoided in the final contract. Put differently, it is not payment per se that the provider demands, but credit or recognition. In fact, recognition of the provider’s input to the science becomes the form of compensation. In economics, Onofri argues that this is understood as ‘payment in terms of moral satisfaction’ (p. 429). Here, the provision of ‘acknowledgement’ can be as powerful as monetary payment, as it satisfies a moral and reputational satisfaction, but also, as it contributes to scientific research.

According to Strathern (1999), such new practices of remuneration

create new social distinctions between persons, new reference points for what people might obtain in return for what they have transferred, handed over, had taken from them or otherwise lost. This might be an idea or a design (in which case inventiveness is recognised as intellectual property), or it might be the enjoyment of the resources as such, including the benefit of exploiting resources for themselves, and the vision of future benefit this brings. The point is that the possibility of recompense has its own social effects. (p. 203)

Legal instruments such as MTAs have a power that can be put to work in a variety of contexts. As Strathern (1999) shows of the potency of the patent in contexts outside of Euro-America, ‘precisely because it rolls so much up into a bundle, precisely because it has rhetorically inflationary potential, and precisely because it invokes property, it is a political slogan of (international) power’ (p. 203). From this perspective, discussions of ‘neoliberal biocapitalism’ and of ‘biocolonialism’, often informed by Euro-American critiques of commodification, conceal the potential of legal instruments like MTAs. This view moves away from focusing on Big Science pushing neoliberal policies onto developing countries. This is not to argue that this does not happen. But at the same time, other regulatory orders are emerging too. And there is a more intricate story to be told about how postcolonial states resist these economic regulations that structure global inequalities. The more intricate story is not only about the redistribution of wealth, but also is about the production of knowledge and science itself.

Conclusion

Covid-19 has been one of the greatest test cases of the differential impact of bioscientific innovation. Despite success in accelerating medical advances, such as vaccination, their uneven distribution highlights the weaknesses of global governance systems and international health law. The failures of regulatory frameworks to ensure the fair distribution of biomedical innovation is a long-standing problem that has evaded effective resolution: Biotechnological invention relies on material and information from developing countries, but the benefits of those R&D processes are concentrated in the developed world. As the toll of lost lives increases worldwide, so does moral pressure on Northern countries to acknowledge and mitigate this problem.

Ninety percent of all biotech patents granted internationally are in the hands of countries in the North. These patents make it difficult and costly to conduct any future biomedical or bioscientific research for countries in the South (Scharper & Cunningham, 2006, p. 197). One can maintain, therefore, that the biotechnological disjuncture between the Global South and the Global North is sustained by IP practices. The CBD and the Nagoya Protocol were partly meant to address this problem of inequality. To achieve ethical forms of exchange, companies and researchers were expected to remunerate providers of biological material. But critical observers indicate how competing global governance systems that protect IP rights (such as GATT and TRIPs), combined with domestic challenges to the implementation of the CBD and the Nagoya protocol, are preventing any serious form of progress in alleviating these global inequalities in bioscience and medical technologies, including access to medicine in global health. This is true for Indonesia. While it ratified the CBD in 1994 and the Nagoya Protocol in 2014, it is yet—like other developing countries—to see the true workings of benefit-sharing.

While patents have received much attention in the coverage on global inequalities precipitated by the Covid-19 pandemic, MTAs have often been overlooked as important legal instruments to control the directions of scientific research. We should attend to the growing appeal to Global South countries of implementing (their own) MTAs within their domestic laws and by their demands to introduce them within international regulations. This article sets them against two doctrines of scientific exchange in the biomedical world: a relatively new one emerging from the 1980s that supports a market-oriented, economic, and private approach using IP tools, and an older paradigm that promotes scientific exchange through free circulation of material and information based on scientific merit, collegiality, and networking. My analysis of Indonesia’s demand for MTAs in the PIP Framework and beyond interrogates how MTAs intervene and reconfigure some of the assumptions underpinning both systems. We should not, though reproduce the binary between what has been described by STS scholars as an economically fueled techno-optimism that supports public-private collaboration on the one hand, and an archaic Mertonianism that urges a return to the normative realm of a good and universal science: Scientific exchanges were never truly autonomous from state or market in the first place (Anderson, 2000; Lave et al., 2010; Mirowski & Van Horn, 2005).

The events and strategies described in this article bring to light two entangled problems that have emerged since the turn of the millennium. One is that transnational regulatory frameworks that organize benefit-sharing arrangements—such as the CBD and the Nagoya Protocol—have proven to be largely unsuccessful. Countries in the Global South still have limited access to medicine and vaccines and benefit only marginally from the fruits of bioscientific and biotechnological development. The second problem is that this situation prevents Global South countries from building strong scientific institutions, including R&D models and laboratories of their own. The story about MTAs in Indonesia addresses the question how postcolonial states govern science, scientific exchange, and scientific knowledge with the broader framework of these governance systems.

Rather than MTAs strengthening current intellectual property regimes, a charge they encounter in the North, we can also approach MTAs as biolegal commoning devices, aiming to intervene in existing global governance systems that have not only weakened the sovereign state in the South but also reproduced conditions that continue to hamper the development of bioscientific institutions and scientific knowledge production in the South. Hence, what the MTA in the Global South aims to accomplish is in fact to turn benefit-sharing as a charitable or humanitarian tool (Hayden, 2005; Morgera, 2019) into a tool of fairness and justice instead. As this retooling of benefit-sharing fuses elements of market governance with elements of humanitarian governance, the MTA functions as a device with teeth, replacing the soft instruments from the human rights system (that have often proved impotent) with the harder and legally binding instruments of contracts favored by the private world.

Going forward, it is the role of law, not as metaphor, but as a technology and producer of social effects, that will be decisive in seeing how a form of postcolonial bioscience governance could evolve. A caveat affects this future, namely that the postcolonial reconfiguration becomes more complicated following the introduction of genetic sequence technology that are changing the landscape of scientific exchange. The need to transfer tangible biological material might soon be obsolete. Samples are not necessarily brought back to the lab. Instead, on the spot sequencing rapidly shifts the legal status of human biological material to digital data, which allows for expedient and cost-effective electronic transfers amongst researchers and institutions. This situation poses new challenges for scientific exchange everywhere but has particularly profound implications for developing countries where there is limited access to these high technologies. ¹⁶ I have addressed some of the postcolonial complexities informing the transition from materials to information elsewhere (Van Wichelen, in press), but more work to address these within a new era of datafication is needed, especially as data profoundly complicates the boundaries and premises of material transfer agreements. My point here is that the shift from tangible to intangible matter does not necessarily change the premise of the core problem: the governance of bioscience in an unequal world. My analysis of the Indonesian case prefigures some of the ways in which legal technologies are put to play to drive a wedge in existing power relations.

Ironically, as developing countries are legally monitoring the flow of scientific exchange, developed nations in the North are calling for the expansion of ‘open science’. Framed as a progressive paradigm, states and supranational states (such as the EU) are creating policy and adopting measures to accommodate aspects of open science. The call to ‘open up’ science, by making methods, codes, peer-review, and data all transparent, and making this information open access on the internet, will remedy the ails of science today. The issues described in my article complicate the narrative that tenets of open science (ought to) flow from the Global North to the Global South. Concerns of scientific credit and economic benefit for people and institutions in the South intervene in the neat moral idea of global sharing. Despite the expanding infrastructures of open science, other ethico-legal technologies and moral knowledge regimes emerge that form new norms and ethics around scientific exchange. MTAs have the biolegal potential to create and/or enforce relations, though it will be interesting to see whether or how this happens in the future.