Who deserves priority over a life-saving vaccine when everyone has a morally equal worth? The COVAX initiative is a path from vaccine nationalism to vaccine equity, but rich countries pay lip service to the initiative while hoarding doses. These same countries also refuse to support a waiver of intellectual property rights for COVID-19 vaccines thus denying their moral and legal obligations.
The list of the first vaccinated patients in the Czech Republic included medical personnel and the most vulnerable people, rightfully prioritized by the system. Amongst them, there were some people who used their connections and jumped the queue. After the media reported these cases, sanctions followed and many had to step down from high-ranking posts. Yet, many healthy young EU citizens will be vaccinated long before the medical personnel and elderly population of almost the entire African continent and many Asian countries.
Why should we distribute more equally?
The COVAX initiative is an example of an equitable vaccine distribution for its efforts to allocate vaccines fairly amongst states. In this regard, Portugal’s recent decision to donate vaccines to its former colonies could fall into this category. However, with its population of 10 million people, Portugal is donating only 5% of 35 million doses it is entitled to get. This is the aftermath of vaccine nationalism, a policy most heavily performed by Canada, which includes outbidding poor countries and stocking up on vaccines in case some of them prove ineffective.
Estimates show that 37 countries will reach widespread vaccination in 2021 leaving 84 countries behind that will have to wait until 2023. The consequences of these policies are far more dangerous than it appears. Scientists agree that the uncoordinated approach will result in a pandemic lasting longer because of new mutations, causing more serious damage to the global economy. In spite of these warnings, it is clear that the COVAX initiative is not getting the support it needs.
Another way to speed up global vaccination
An effective way is sharing information among vaccine suppliers so that manufacturers in other countries can provide their own. Even though the vaccine development process was heavily funded by countries, companies now hesitate to do so. They argue that vaccine manufacturing is too complex and developing countries would not be able to develop vaccines any time soon. Meanwhile, current manufacturing capacity meets only a fraction of global needs.
The role of intellectual property law and human rights
South Africa and India were recently rejected by the World Trade Organization when trying to get a waiver against the usual guarantees of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Such waiver would enable developing countries to produce vaccines. Yet wealthy countries such as the US, UK, and EU Member States opposed the idea, saying it would take away the incentive to make investments in research and development to keep up with the mutating virus.
The TRIPS Agreement also offers flexibility when it comes to patented materials used by WTO member states. Article 31 provides an opportunity to waive the requirement to make efforts when obtaining authorization from the right holder on reasonable commercial terms. This opportunity is a case of national emergency or of public non-commercial use. This provision was further interpreted in a way that it does not and should not prevent from taking measures to protect public health and should support the protection of public health in particular to promote access to medicines for all.
While there is no treaty discussing how essential goods should be distributed around the world, more than international trade rules come into play. Human rights treaties, such as the International Covenant on Economic, Social, and Cultural Rights (ICESCR) with its 171 member states, bind them to international cooperation, disease prevention, and control. Arguably, the obligation to progressively achieve the full realization of rights of the ICESCR also applies to its imperative that “...in no case may a people be deprived of its own means of subsistence”. Taking into account what has been said, people of developing countries have been put into extreme poverty by the pandemic itself and due to vaccine nationalism, they will be further deprived of their means of subsistence along with the right to the highest attainable standard of physical and mental health, the right to education and the right to work.
Moreover, the ICESCR’s obligation to achieve the highest attainable standard of physical and mental health explicitly calls for measures necessary to prevent, treat and control an epidemic and to assure medical service for the sickness. Furthermore, when ICESCR presents suitable methods to secure rights under the Covenant, it includes furnishing technical assistance. Supporting a TRIPS waiver can also be seen as technical assistance.
Hope for a better tomorrow
This is the most crucial time to show solidarity. Rich countries do not only have a moral but also a legal duty to do so. The next WTO discussions on Indian and South African proposals will take place in March. Furthermore, pharmaceutical companies are starting to take their stand too. AstraZeneca and Johnson & Johnson are now cooperating with institutions in India and South Africa, which is now already producing vaccines.
CESCR (2020). Statement on universal and equitable access to vaccines for the coronavirus disease (COVID-19) (https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E/C.12/2020/2&Lang=en).
Desierto, Diane. Equitable COVID Vaccine Distribution and Access: Enforcing International Legal Obligations under Economic, Social, and Cultural Rights and the Right to Development. EJIL: Talk! 2 February 2021 (https://www.ejiltalk.org/equitable-covid-vaccine-distribution-and-access-enforcing-international-legal-obligations-under-economic-social-and-cultural-rights-and-the-right-to-development/).
Elmslie, Jenifer. Vaccine Nationalism: the international community must not turn to this medically self-defeating and economically damaging practice. London School of Economics and Political Science. 24 February 2021 (https://blogs.lse.ac.uk/internationaldevelopment/2021/02/24/vaccine-nationalism/).
Hänel, Lisa. Coronavirus: Lack of global vaccine strategy has 'immense costs'. DW. 22 February 2021 (https://www.dw.com/en/coronavirus-lack-of-global-vaccine-strategy-has-immense-costs/a-56431354).
Perehudoff, Katrina. 5 legal questions on vaccine distribution. University of Amsterdam. 22 February 2021 (https://www.uva.nl/en/shared-content/faculteiten/en/faculteit-der-rechtsgeleerdheid/news/2021/02/five-legal-questions-on-vaccine-distribution.html?cb).
WTO (2001). Declaration on the TRIPS agreement and public health (https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm).
WTO (2020). Waiver from certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19 (https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True).
Covid-19 vaccines, author: Torsten Simon, 10 January 2021, Pixabay, CC0, edits: cropped.