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Statement on Universal Affordable Vaccination against Coronavirus Disease covid-19, International Cooperation and Intellectual Property

Committee on Economic, Social and Cultural Rights

In: International Human Rights Law Review
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Abstract

Access to a vaccine against coronavirus disease (covid-19) that is safe, effective and based on the best scientific developments is an essential component of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the right of everyone to enjoy the benefits of scientific progress and its applications. States therefore have an obligation to take all the necessary measures, as a matter of priority and to the maximum of their available resources, to guarantee all persons access to vaccines against covid-19, without any discrimination. This statement builds on the previous statements of the Committee on Economic, Social and Cultural Rights of 6 April 2020 on the coronavirus disease (covid-19) pandemic and economic, social and cultural rights (E/C.12/2020/1) and of 27 November 2020 on universal and equitable access to vaccines for the coronavirus disease (covid-19) (E/C.12/2020/2). It is intended to remind States of their obligations under the International Covenant on Economic, Social and Cultural Rights in relation to universal access and affordability of vaccines against covid-19, particularly with regard to international cooperation and intellectual property.

Abstract

Access to a vaccine against coronavirus disease (covid-19) that is safe, effective and based on the best scientific developments is an essential component of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health and the right of everyone to enjoy the benefits of scientific progress and its applications. States therefore have an obligation to take all the necessary measures, as a matter of priority and to the maximum of their available resources, to guarantee all persons access to vaccines against covid-19, without any discrimination. This statement builds on the previous statements of the Committee on Economic, Social and Cultural Rights of 6 April 2020 on the coronavirus disease (covid-19) pandemic and economic, social and cultural rights (E/C.12/2020/1) and of 27 November 2020 on universal and equitable access to vaccines for the coronavirus disease (covid-19) (E/C.12/2020/2). It is intended to remind States of their obligations under the International Covenant on Economic, Social and Cultural Rights in relation to universal access and affordability of vaccines against covid-19, particularly with regard to international cooperation and intellectual property.

  1. 1.International scientific cooperation, intensive research and substantive financial support by States have allowed the development of several safe and effective vaccines against covid-19 in record time, without compromising safety, as the protocols and international guidelines in that respect have been followed and those vaccines have been approved by the respective health authorities. However, this enormous scientific achievement is not delivering its full potential for controlling the pandemic and reducing the suffering it has caused because of problems of availability, as enough vaccines have not been produced so far; and also because of unequal global distribution of the vaccines already produced and ordered. Most vaccines have been applied in and reserved for developed and high income countries, whereas vaccination in many least developed and developing countries has not even started. This situation not only represents a discrimination in the right to access to vaccination at the global level but also undermines progress on achieving Sustainable Development Goals, especially sdg 3 on ensuring healthy lives and well-being at all ages, sdg 10 on reducing inequalities within and among countries and sdg 17 on strengthening the means of implementation and revitalizing the global partnership for sustainable development.1 It also represents a serious threat for global health. As long as billions of persons are not vaccinated speedily, contagion by sars-cov-2 will continue and more people will die. The slow and inequitable distribution of vaccines reportedly also increases the possibilities of additional new mutations of the virus, with the risk of the appearance of new variants that are more easily transmissible, more lethal and against which current vaccines might be less effective.2
  2. 2.This discrepancy between the enormous potential of vaccines for improving global health and its limited and unequal current positive impact so far has led the Committee to adopt this statement. This statement builds on the Committee’s previous statements on the matter,3 in order to remind States of their obligations under the Covenant in relation to universal access and affordability of vaccines against covid-19, in particular in relation to international cooperation and intellectual property.
  3. 3.Access to a vaccine against covid-19 that is safe, effective and based on the best scientific developments is an essential component of the right to the enjoyment of the highest attainable standard of physical and mental health4 and the right to enjoy the benefits of scientific progress.5 States therefore have a priority obligation to take all the necessary measures, to the maximum of their available resources, to guarantee access to available vaccines against covid-19 to all persons, without any discrimination.6 This obligation needs to be implemented nationally and at the same time has also an international dimension as many States worldwide do not produce vaccines themselves. States have therefore a duty of international cooperation and assistance to ensure access to vaccines against covid-19 wherever needed, including by using their voting rights as members of different international institutions or organizations,7 including regional integration organizations such as the European Union. All those international organizations should also contribute to the achievement of universal and equitable access against vaccines and refrain from taking measures that obstruct this goal. Thus, States must strengthen their international cooperation to guarantee, as soon as possible, affordable vaccines against covid-19 globally including for developing and least developed countries.
  4. 4.The Committee regrets the current unhealthy race for covid-19 vaccines among States, which has created a sort of temporary monopoly of the first vaccines produced for some developed States, particularly in the next crucial months, because the production capacity currently available is already sold out through public procurement of such States. Given the global nature of the pandemic, States have also the obligation to support, to the maximum of their available resources, efforts for making vaccines available globally. Vaccine nationalism infringes extraterritorial obligations of States to avoid taking decisions that limit the opportunity of other States to make vaccines available and thus to implement their human rights obligations related to right to health, as it results in shortage of vaccines for those who are most in need in the least developed countries.
  5. 5.The Committee reiterates that instead of this health isolationism, States must honor their obligations to contribute to the enjoyment of all human rights, including the right to health, globally.8 Production and distribution of vaccines must be organized and supported by international cooperation and assistance, which includes the sharing of benefits of scientific progress and its applications.9 States parties should develop strategies and mechanisms for a sufficient production and a global equitable distribution of vaccines against covid-19. Prioritization in the global distribution of vaccines should be based, as should be the case also at the national level, on medical needs and public health considerations. In that context, the Committee welcomes the statements and proposals made by different States with the goal to ensure universal and equitable access to covid-19 vaccination.10
  6. 6.In particular, the Committee urges all States, especially the most developed ones and those where the vaccines are produced, to provide all the necessary financial and technical support to strengthening the covax Global Vaccines Facility for a more equitable distribution of vaccines. However, this mechanism might be insufficient because it does not solve the problems of insufficient production of vaccines. Therefore, other measures are urgent and necessary, in particular in relation to intellectual property, for achieving, as expeditiously as technically possible, universal access to vaccines.
  7. 7.Most of the vaccines approved are subject to the regime of intellectual property rights. It is fair that private business entities or public institutions of research that created these vaccines, with huge financial support by public funds, receive a reasonable compensation for their investments and research. However, the Committee reminds that intellectual property rights are not a human right, but a social product, having a social function.11 Consequently, States parties have a duty to prevent intellectual property and patent legal regimes from undermining the enjoyment of economic, social and cultural rights.12 As stated in the World Trade Organization Doha Declaration on the Trade-Related Aspects of Intellectual Property Rights Agreement trips and Public Health (2001), the intellectual property regime should be interpreted and implemented in a manner supportive of the duty of States “to protect public health”.13
  8. 8.Business entities, including pharmaceutical companies, have the obligation, as a minimum, to respect Covenant rights;14 they have specific responsibilities to enable the realization of the right to health, including in relation to access to medicines and vaccines.15 In particular, pharmaceutical companies, including innovator, generic and biotechnology companies, have human rights responsibilities in relation to access to medicines, comprising active pharmaceutical ingredients, diagnostic tools, vaccines, biopharmaceuticals and other related health-care technologies.16 Thus, business entities should also refrain from invoking intellectual property rights in a manner that is inconsistent with the right of every person to access a safe and effective vaccine against covid-19 or to the right of States to exercise trips flexibilities.17
  9. 9.States parties have the international obligation to respect the right to health in other countries, and to prevent third parties, including business entities, from violating the right to health in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law. Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, including vaccines, wherever possible, and provide the necessary aid when required.18 In addition, States parties have an extraterritorial obligation to take the necessary measures to ensure that business entities domiciled in their territory and/or under its jurisdiction do not violate economic, social and cultural rights abroad.19 Therefore States should take all necessary measures to ensure that such business entities do not invoke intellectual property law, either in their own territory or abroad, in a manner inconsistent with the right of every person to access a safe and effective vaccine against covid-19.
  10. 10.In that context, States parties should use, when necessary, all the flexibilities of the trips Agreement, such as compulsory licenses, to scale up production and ensure availability and access to all to a safe and effective vaccine against covid-19. However, these flexibilities of the trips Agreement have so far proven insufficient to guarantee enough vaccines and an equitable distribution of them, especially in developing countries. In particular, these flexibilities operate “case by case” through decisions taken by specific countries in relation to specific products and with legal requirements that are not appropriate for such an exceptional health crisis as the one created by this pandemic. For instance, under the trips Agreement, the adoption of a compulsory license is a complex process that has to meet requirements such as that it should be made product by product and used essentially to supply domestic markets. In the context of the pandemic, those characteristics limit strongly the necessary swift international cooperation as it hinders the possibility of countries with the possibility to produce vaccines to export them to countries in need. This situation explains also that some countries and business entities with the technical capacity of producing the already approved vaccines have refrained from doing so, for concerns of being subjected to litigation for breach of patents. Companies that have invented vaccines shall also be supported in providing the technology transfer needed to increase production also in other countries and production sites.
  11. 11.The current restrictions of intellectual property rules in the trips Agreement make it very difficult to undertake the necessary international cooperation, to massively scale up production and distribution of vaccines at the levels that it is now technically possible and urgently required to achieve herd immunity as soon as possible, in order to avoid millions of preventable deaths, overcome the economic and social disruptions created by the pandemic and reduce the risks of dangerous mutations of the virus.
  12. 12.The insufficient supply of vaccines and its deeply unequal global distribution necessitates urgent additional measures to be taken also in relation to the intellectual property regime. In that context, some States have proposed in the wto20 a temporary waiver for some of the provisions of the trips agreement for vaccines and treatment for covid-19, at least while global herd immunity for covid-19 is achieved and the pandemic is considered under control. This proposal has been supported by a number of independent expert from the Human Rights Council’s special procedures, the expert mechanism on the right to development,21 who,22 a growing number of States and an increasing number of scientific and humanitarian organizations.
  13. 13.The current exceptional circumstances created by the pandemic are a strong reminder of the paramount importance of the obligation of all States, under the United Nations Charter, to contribute to the enjoyment of all human rights including the right to health, globally,23 and of the obligation of State parties to cooperate internationally for the full enjoyment of economic, social and cultural rights. In that context, States should take into account that there is the technical possibility of scaling up production and distribution of vaccines to achieve swift universal affordability and accessibility for vaccination against covid-19. The most important goal is to prevent deaths and be able to respond to the pandemic as soon as possible. Voluntary sharing, transparent, non-exclusive and public-health driven licensing and technology transfer agreements will promote competition and scale up manufacturing for vaccines. All mechanisms, including voluntary licensing, technology pools, use of trips flexibilities and waivers of certain intellectual property provisions or market exclusivities should be explored carefully and utilized. All these different initiatives have different characteristics and could be implemented in different and complementary ways as there are also existing challenges for the implementation of each of them. That is why they should be explored simultaneously according to the different needs of the countries and their ability to implement them at the national and international levels. Thus, the waiver of certain provisions of the trips Agreement is an essential element of these complementary strategies. Besides, failing to approve the temporary waiver of trips Agreement provisions for equitable and affordable access to medical technologies, including Covid-19 vaccines, will also come in the way of global economic recovery, which is necessary for overcoming the negative impact of the pandemic on the enjoyment of all economic, social and cultural rights. In that context, the Committee strongly recommends States to support the proposals of this temporary waiver, including by using their voting rights within wto.
  14. 14.Finally, while this statement is essentially on equitable and universal access to vaccines against covid-19, the Committee considers that its main considerations are relevant, mutatis mutandis, in relation to the obligations of States to also ensure universal and equitable access to treatment for covid-19. The Committee will continue to research and monitor the impact of the covid-19 pandemic on economic, social and cultural rights, in particular in relation to the right to health, through the fulfilment of its various mandates under the Covenant.

1

See United Nations General Assembly, “Transforming Our World: the 2030 Agenda for Sustainable Development”, unga Res A/RES/70/1 of 21 October 2015. Also see ohchr, Independent Expert on human rights and international solidarity, Mr Obiora C. Okafor, “UN Expert says Global Coordination and more equitable sharing of covid-19 Vaccines are Key to Recovery”, 22 January 2021.

2

See “who warns against ‘vaccine hoarding’ or face further virus mutations”, bmj 2021;372:n292, 1 February 2021.

3

See cescr Statement adopted on 17 April 2020 on the coronavirus disease (covid-19) pandemic and economic, social and cultural rights. Also see cescr Statement adopted on 27 November 2020 on universal and equitable access to vaccines for the coronavirus disease (covid-19).

4

See article 12 of the International Covenant on Economic, Social and Cultural Rights and article 25 of the Universal Declaration of Human Rights.

5

See article 15 of the International Covenant on Economic, Social and Cultural Rights and article 27 of the Universal Declaration of Human Rights.

6

See articles 2, 12 and 15 of the International Covenant on Economic, Social and Cultural Rights.

7

See cescr Statement adopted in June 2016 on public debt, austerity measures and the International Covenant on Economic, Social and Cultural Rights, para 9.

8

See articles 55 and 56 of the United Nations Charter. Also see Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities.

9

See article 2 of the International Covenant on Economic, Social and Cultural Rights. Also see United Nations General Assembly, “Transforming Our World: the 2030 Agenda for Sustainable Development”, sustainable development goal 3 (sdg 3).

10

See, for instance, “Solidarity Call to Action to realize equitable global access to covid-19 health technologies through pooling of knowledge, intellectual property and data”, signed by who Director-General and President of Costa Rica, and endorsed by 40 States,<https://www.who.int/initiatives/covid-19-technology-access-pool/solidarity-call-to-action>. Also see Communication From India And South Africa, “Waiver From Certain Provisions Of The Trips Agreement For The Prevention, Containment And Treatment Of Covid-19” (IP/C/W/669). See also the statement made by the Russian Federation in the UN General Assembly on 22 September 2020 concerning free access to vaccinations for citizens of all States in the foreseeable future, <https://news.un.org/en/story/2020/09/1073152>.

11

See Committee on Economic, Social and Cultural Rights, General Comment No. 17 (2006) on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author, paras. 1 and 2.

12

See Committee on Economic, Social and Cultural Rights, General Comment No. 17 (2006) on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author”, para. 35.

13

See Committee on Economic, Social and Cultural Rights, General Comment No. 25 (2020) on Science and Economic, Social and Cultural Rights, para. 69.

14

See Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, para. 5. Also see United Nations Guiding Principles on Business and Human Rights, principle 11.

15

See cescr General Comment No. 14 (2000) on the right to the highest attainable standard of health, para 42.

16

See “Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines”, incorporated in the report to the General Assembly of the UN Special Rapporteur on the right to the highest attainable standard of health A/63/263, 11 August 2008.

17

See Principles 26 to 28 of the “Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines”, incorporated in the report to the General Assembly of the UN Special Rapporteur on the right to the highest attainable standard of health, A/63/263, 11 August 2008.

18

See Committee on Economic, Social and Cultural Rights, General Comment No. 14 (2000) on the right to the highest attainable standard of health, para 39.

19

See Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities, paras. 26 and 28.

20

See South Africa´s statement at the wto trips Council, July 30, 2020, <https://www.keionline.org/33593>.

21

Statement by UN Human Rights Experts on universal access to vaccines is essential for prevention and containment of covid-19 around the world, 9 November 2020, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26484&LangID=E>. See also Statement by UN Human Rights Experts on covid-19: UN experts urge wto cooperation on vaccines to protect global public health, 1 March 2021, <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26817&LangID=E>.

22

See the article by the Director of who Tedros Adhanom Ghebreyesus, “A ‘me first’ approach to vaccination won’t defeat Covid”, published in The Guardian, 5 March 2021, <https://www.theguardian.com/commentisfree/2021/mar/05/vaccination-covid-vaccines-rich-nations>.

23

See articles 55 and 56 of the United Nations Charter. See also Committee on Economic, Social and Cultural Rights, General Comment No. 24 (2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities.

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