A longer version of this article was published by OpinioJuris on 18 February 2021.
The Director General of the World Health Organisation (WHO), Tedros Adhanom Ghebreyesus, has warned that the world is on the brink of a catastrophic moral failure if wealthier nations do not ensure the equitable distribution of vaccines to combat the coronavirus pandemic. Concerns about a “global vaccine apartheid” have also been expressed by Winnie Byanyima, Executive Director of UNAIDS.
The stark reality is that no population will be safe until all populations are safe. However, beyond the looming humanitarian and moral catastrophe lie opportunities for mobilizing international human rights law to compel states to take action, not merely in their own jurisdictions, but also globally, to respond to the developing crisis.
Rollout of coronavirus vaccines has been underway since early December 2020 in richer countries, while hardly any vaccines have made their way to people living in the Global South. As of early February, 2021, high-income countries, representing only 16% of the world’s population, had secured 60% of the available vaccine doses, while the African Union has only managed to procure 670 million doses for the approximately 1.3 billion people on the continent.
One of the issues driving these deep global inequalities is the ability of richer countries to more easily afford commercially-produced vaccines such as those from Pfizer-BioNTech and Moderna. Already in November 2020, the European Union (EU) and five other wealthy countries had pre-ordered about half of the anticipated global capacity for vaccine production. Exacerbating the emerging vaccine nationalism and turf wars, the COVAX facility (a global risk-sharing mechanism for pooled procurement and equitable distribution of eventual coronavirus vaccines) is unlikely to meet the considerable vaccine needs of the developing world, either in terms of the required volume of vaccines or their speedy rollout.
Waiving intellectual property rights
Faced with this reality, on October 2 2020, a formal proposal was submitted by India and South Africa to the World Trade Organisation (WTO) for a temporary Intellectual Property (IP) waiver on coronavirus drugs. The proposal aims to facilitate fast and affordable manufacturing of coronavirus vaccines and medicines by any country with the requisite manufacturing capacity.
Supporters of this proposal—which include civil society organisations around the world such as Amnesty International, and United Nations human rights experts—point out that the normal Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) patent exception process is complex and lengthy, requiring each country to apply individually.
The stark reality is that no population will be safe until all populations are safe.
In addition, supporters of the IP waiver proposal highlight that significant public resources have been used for the development of many of the vaccines. For example, Pfizer-BioNTech received $445 million from the German government, and Moderna received over $1 billion from US government agencies, to develop their vaccine technologies. This reinforces calls to regard such vaccines as ‘people’s vaccines’ rather than restricting access on the basis of a pharmaceutical company’s patents.
Unfortunately, from the outset the IP waiver proposal encountered strong opposition during the WTO deliberations, particularly from the US, the United Kingdom, Canada, Australia, Japan, Norway, Switzerland and the EU.
Not surprisingly, pharmaceutical companies, including BioNTech, which is set to receive half of its share of 26 Billion dollars in from 2021 sales of its vaccine in a 50/50 partnership with Pfizer, has raised vigorous objections to the waiver.
However, the proposal received a significant boost when (to the surprise of many), on 5 May 2021, US President Joe Biden indicated his willingness to support the waiver proposal. The following day, European Commission President Ursula von der Leyen said the EU was willing to discuss the proposal.
Although still opposed by many countries, including, at the time of writing, Germany and France, support from the US and EU is a substantial advance for the campaign and raises hopes of both a positive decision on the IP waiver and a new engagement with international human rights norms within the WTO.
Mobilizing human rights obligations
Irrespective of the debates concerning the correct balance between patents and innovation on the one hand and the availability of drugs for public health purposes on the other, international human rights offer a critical platform for both understanding the violations and addressing the massive global inequalities in vaccine access.
In our view, a blanket, temporary IP exception for coronavirus drugs to fight the pandemic is a requirement of international human rights law that is in everyone’s interests. The global regime of intellectual property rights must not be allowed to undermine fundamental human rights.
International human rights treaties ratified by virtually all states (state parties), including the International Covenant on Economic Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), guarantee critical rights and establish associated state obligations that apply to the issue of access to life-saving vaccines.
Most directly, Article 12 of the ICESCR guarantees the right of everyone to the highest attainable standard of physical and mental health. Regarding COVID-19, Article 12(2)(c) creates explicit obligations to prevent, treat, and control epidemic diseases; and Article 12(2)(d) specifies that states have an obligation to create conditions to ensure all people have access to medical service and medical attention.
The global regime of intellectual property rights must not be allowed to undermine fundamental human rights.
Access to coronavirus vaccines is, therefore, a fundamental aspect of the right to health. In its General Comment 14 on the right to health, the UN Committee on Economic, Social and Cultural Rights (CESCR) sets out that Article 12(2)(d) requires states to undertake joint efforts to make available relevant technologies, and to implement or enhance immunization programmes and other strategies of infectious disease control.
Although international law primarily binds state parties regarding actions in their own states, Article 2(1) of the ICESCR establishes a broader responsibility to assist other member states in achieving the full realisation of Covenant rights, including not only financial resources, but also access to relevant technology.
Furthermore, Article 15 of the ICESCR states that everyone has the right to “enjoy the benefits of scientific progress and its applications”. According to the CESCR’s General Comment 25, this means states “should fulfil this duty to the maximum of their available resources, including those available through international assistance and cooperation…”. Notably, the CESCR has recognized here that “ultimately, intellectual property is a social product and has a social function and consequently, States parties have a duty to prevent unreasonably high costs for access to essential medicines”.
In line with its previous General Comments, the CESCR has now issued a Statement on universal affordable vaccination for COVID-19, international cooperation and intellectual property in which it clarifies that States must support efforts to make vaccines available globally, in an equitable manner, including through the proposed TRIPS waiver.
Beyond the ICESCR, Article 6 of the ICCPR establishes a right to life, which, as clarified by the UN Committee on Civil and Political Rights in its General Comment 36 on the right to life, requires states to: take appropriate measures to address the prevalence of life-threatening diseases such as AIDS, tuberculosis and malaria; take measures to ensure access without delay by individuals to essential health care; and develop strategic plans for advancing the enjoyment of the right to life.
All of the richer countries, with the exception of the US and Saudi Arabia, have ratified the ICESCR and therefore are legally bound to its obligations—the US has ratified the ICCPR.
State compliance—including through membership of the WTO—with transnational human rights norms and obligations to address looming global health, environmental, and socio-economic disaster have literally become a matter of life and death on a mass scale.
By mobilizing international law as part of a visible campaign to hold states accountable to human rights, we might still be able to avoid the catastrophic consequences of entrenching a global vaccine apartheid. Through the international network, ESCR-Net, NGOs from many countries have prepared a complaint to UN and regional Special Procedures, requesting that urgent appeals be sent to states and to several of the largest pharmaceutical corporations calling on them to comply with their human rights obligations to not block equitable distribution and production of vaccines. Direct pressure on national governments by human rights organizations and institutions may also help to move governments away from vaccine nationalism toward a more human rights based approach.