Supporting the TRIPS COVID-19 waiver is an essential step to support international human rights
A waiver would be a vital step for expediting the scaling up of manufacturing and provision of COVID-19 medical products.
A nurse prepares a Sinopharm coronavirus vaccines against Covid-19 at Parirenyatwa Group of Hopsitals in Harare, Zimbabwe in November 2021. Border testing and movement controls have been put in place and being tightly enforced for travellers crossing into Zimbabwe after the outbreak of the Omicron variant of coronavirus in South Africa and Botswana. EFE/EPA/AARON UFUMELI
The World Health Organization’s Director General 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 SARS-CoV-2 pandemic. Yet, the iniquitous global distribution of COVID-19 vaccines persists and is now widely acknowledged as constituting ‘vaccine apartheid’.
Without universal access to vaccines, everyone in the world remains vulnerable to the ravages of SARS-CoV-2. However, due to existing inequalities and systems of disadvantage, COVID-19 has particularly severe consequences in the Global South and specifically for already marginalized groups.
The TRIPS COVID-19 waiver proposal
Attempting to mitigate against vaccine apartheid, in October 2020, India and South Africa proposed to the World Trade Organization (WTO) a temporary waiver from certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in relation to COVID-19 medical products (revised 21 May, 2021).
A waiver would be a vital step for expediting the scaling up of manufacturing and provision of COVID-19 medical products by allowing WTO Members to facilitate both the production of generics by those members with manufacturing capacity and their exports to countries in need.
While over 100 states support the proposal, powerful ones such as Germany, the United Kingdom, Japan, Norway, Canada and Switzerland, as well as the European Union, still do not support the waiver proposal and may continue to prevent its adoption by consensus. Yet, as pointed out by international human rights defenders including Amnesty International, ESCR-net and United Nations (UN) human rights experts, the international human rights to health and life demand an equitable distribution of COVID-19 vaccines, and, thus, an increase in supply of COVID-19 medical products.
The emergence of a new SARS-CoV-2 variant, Omicron on 26 November has highlighted the pressing need for WTO Members to reach consensus in support of the proposal. In response to Omicron, the WTO cancelled the 12th Ministerial Conference (MC12) that was scheduled to be held this week. Surprisingly, the Members declined to meet virtually despite this urgency. However, the TRIPS Council will meet early this week to discuss how to deal with the waiver proposal.
The international human rights law (IHRL) dimensions
International human rights treaties guarantee critical rights and multilateral obligations of international cooperation, and establish associated obligations that apply to the issue of life-saving vaccines.
Article 12 of the ICESCR guarantees everyone’s right to the highest attainable standard of physical and mental health. Most directly, Article 12(2)(c) creates explicit obligations to prevent, treat, and control epidemic diseases; and Article 12(2)(d) specifies that ICESCR parties have an obligation to create conditions to ensure all people have access to medical service and medical attention.
The international human rights to health and life demand an equitable distribution of COVID-19 vaccines, and, thus, an increase in supply of COVID-19 medical products.
While international human rights treaties primarily bind a State Party regarding actions in its own country, Article 2(1) of the ICESCR establishes a broader, multilateral obligation of international co-operation and assistance in achieving the full realization of treaty rights.
In April 2021, the UN Committee on Economic, Social and Cultural Rights clarified that State Parties are obliged to support efforts to make affordable vaccines available globally, in an equitable manner, including through the proposed TRIPS waiver.
Furthermore, Article 6 of the ICCPR establishes a right to life. As clarified by the UN Committee on Civil and Political Rights, it requires States Parties to take appropriate measures to facilitate access to essential healthcare especially in the context of life-threatening diseases.
Finally, in October 2021, the UN Office of the High Commission for Human Rights issued a communique clarifying that not supporting the TRIPS waiver contravenes IHRL and arguing that “protection of patents concerning the vaccines [should not] not become a barrier to the effective enjoyment of the right to health.”
Mobilising IHRL in support of the TRIPS COVID-19 waiver proposal
All non-supporting countries mentioned above have ratified the ICESCR and ICCPR and are thus legally bound to its obligations. To defend the rights to health and life, an activist movement we are part of has mobilized international human rights law to advocate for support of the TRIPS COVID-19 waiver.
This movement includes a collaboration between various global, regional, and domestic human rights, social justice, and public health organisations, as organised through four international organisations: ESCR-net, Global Network of Movement Lawyers (GNML) at Movement Law Lab (MLL), International Network of Civil Liberties Organizations (INCLO) and People’s Vaccine Alliance.
The movement underscores that the failure of States Parties to the ICESCR and ICCPR to support the TRIPS COVID-19 waiver proposal contravenes their IHRL obligations. And it maintains in relation to vaccine apartheid, that these failures are so egregious as to demand a justiciable remedy in domestic courts (e.g. in Canada, Germany, Japan, Norway, Switzerland and the United Kingdom) to ensure equitable access to COVID-19 products and technologies for the benefit of everyone in the world, including the populations of wealthy countries (in terms of the reality that no one is safe until everyone is).
In particular, to ground the argument of domestic justiciability against non-supporting states, the movement has three arguments. First, that the obligation to perform international treaty obligations in good faith constitutes a peremptory norm of international law. Second, that international cooperation for the protection of the rights to life and health may be recognized as a component of customary international law. And third, that the rights to life, health, and non-discrimination within domestic law must be interpreted in accordance with a state’s IHRL obligations, including obligations of international co-operation.
Course of action
The movement has undertaken rolling advocacy to increase support for the TRIPS COVID-19 waiver. It has made formal submissions to international/multilateral bodies, sent letters to governments and pharmaceutical companies, asked the WTO about accountability measures, filed appeals before international bodies and publicized an expert legal opinion signed by 135 leading jurists. These actions aim at drawing attention to the IHRL obligations to support the waiver.
But teams in several countries are preparing litigation measures too. They can be filed in domestic courts to hold governments accountable to the international human rights obligations.
Through such mobilization, our movement calls on all countries to support the waiver proposal, and to ensure it is adopted as soon as possible. Failure to support the proposal is not only a catastrophe for the protection of the rights to life and health globally, but also for the integrity of the international rule of law and multilateral institutions.
All authors are members of the collaborative civil society effort to support the TRIPS COVID-19 waiver proposal. This article advances international human rights law arguments made by Jackie Dugard, Bruce Porter and Jeff Handmaker in OpenGlobalRights.
Jackie Dugard is an associate professor at the School of Law, University of the Witwatersrand.
Franziska Sucker is an associate professor of law at the University of the Witwatersrand, South Africa.
Bruce Porter is the executive director of the Social Rights Advocacy Centre in Canada.
Jamie Burton QC is barrister and chair of Just Fair, United Kingdom.