The effect of vaccine nationalism and the global right to health
Competition to gain fast access to Corona virus vaccines has led to vaccine nationalism. Under current circumstances, does international law recognize a global right to health that States should respect?
2020 seemed to end on a relatively optimistic note when the multiple Covid-19 vaccines successfully completing their trial stages were finally approved for public use, putting the end of the pandemic in sight. However, bilateral agreements pre-emptively struck between high-income States and pharmaceutical companies for first access to millions of doses have pushed this finish line a little further away for some.
‘Vaccine nationalism’ refers to States (with the capacity to do so) who secure large quantities of vaccine doses for domestic inoculation programmes as they become available, resulting in an inequitable distribution of resources around the globe. This phenomenon was even seen in the past when treatments became available for HIV/AIDS, smallpox, polio and the H1N1 virus. While the prioritisation by States of its own nationals’ health is understandable, how this is accomplished has been deemed ‘morally reprehensible’ by many experts. WHO Director-General Tedros Adhanom Ghebreyesus recently stated that ‘[t]he world is on the brink of catastrophic moral failure – which will be paid with lives and livelihoods in the world’s poorest countries’.
To put this issue in context, it has been estimated that high-income States have pre-purchased more than half of the vaccine doses expected to be manufactured in 2021, even though they account for just 13% of the world’s population. This explains the striking contrast between the 39 million doses that have been administered in high-income States compared to the 25 doses in low-income States. Vaccine nationalism will undoubtedly prolong the pandemic as, according to WHO estimations, its effects might not subside until at least 70% of the global population has been vaccinated. It may only be towards the latter part of 2023-2024 when low-income States can access sufficient doses of the vaccine to see these results.
The effects of a prolonged pandemic
The effects of the prolonged pandemic will primarily be felt among those at a high risk of contracting the virus, including healthcare workers. This group will be forced to continue risking their lives without the protection of the vaccine over young and healthy individuals in high-income States. This will raise the number of preventable deaths and have a crippling effect on the health infrastructure of low-income States.
Additionally, the global economy is said to drop by USD 1.2 trillion due to the prolonged pandemic, with this impact being considerably less if low-income States were able to start their inoculation programmes at the same time as high-income States. The pandemic will also continue to debilitate the already frail economic structures of low-income States, further increasing the vulnerabilities of their peoples. According to the World Bank, as many as 150 million people will be pushed into extreme poverty by the end of 2021, denying them a life of dignity in which their basic needs are met.
Donations and ‘vaccine-diplomacy’
Some States have promised to donate their extra doses once their own vaccination programmes have been completed. Still, there is no clear timeline for when this will take place with delays expected to be caused by rising scepticism towards the safety of the vaccine and complications resulting from the need to administer multiple doses in a timely manner before the vaccine takes effect (for example, the United States has never been successful in vaccinating more than 50% of its adult population during the seasonal flu). Members of high-risk categories in low-income States cannot be expected to wait. Furthermore, States with excess doses may want to hold on to them until there is more information about whether the vaccine’s effects wear off with time, meaning more doses would be needed seasonally or in the event of a subsequent wave.
When high-income States do finally part with their excess doses, this will most likely be through ‘vaccine diplomacy’ to their friends and allies, thus making the availability of the vaccine dependent on political considerations rather than equity.
Do States have an obligation to ensure global health?
A number of international declarations and conventions articulate the human right to health including Article 25 of the Universal Declaration of Human Rights, Article 24 of the Convention on the Rights of the Child, Article 25 of the Convention on the Rights of Persons with Disabilities, Articles 12 and 14 of the Convention on the Elimination of All Forms of Discrimination against Women and Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination. Article 12 of the International Covenant on Economic Social and Cultural Rights (ICESCR) is also central to this discussion on the right to health.
Although human rights are primarily owed by the State to its citizens, the wording used in the ICESCR recognises these rights on behalf of ‘all members of the human family’. It has been observed that the wording in the ICESCR lacks any jurisdictional limitation unlike other corresponding international covenants, indicating that it was intended to have extraterritorial scope. This could be construed as a narrower ‘negative’ obligation on States not to ‘nullify or impair’ the enjoyment of ICESCR rights by people outside their territory; an argument which is also supported by the (albeit non-binding) principles expressed in the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights.
The preamble of the ICESCR refers to the ‘obligations of States under the UN Charter’, which General Comment No. 14 (in paragraph 38) has clarified refers to ‘the sprit in Article 56 of the UN Charter’.
Article 56 of the UN Charter contains a pledge by its members ‘to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55’ which identifies the promotion of ‘international … health and related problems’ as necessary for the ‘creation of conditions of stability and well-being … for peaceful and friendly relations among nations’.
Furthermore, under Article 2 of the ICESCR, States undertake to realise the rights granted by the Covenant through ‘international assistance and co-operation to the maximum of its available resources’. Ordinarily this would be understood as an obligation by States to obtain necessary international assistance to ensure the realisation of this right for their own people. But in the event of a global pandemic, could it not also be construed as an obligation to provide assistance or, at the very least, prevent the circumstances created by vaccine nationalism? In this context, it could also be argued that the words ‘to the maximum of its available resources’ refer to an obligation on States to ensure equitable distribution of medical supplies, including life-saving vaccines. This would be especially relevant to combat the effects of the current pandemic which, as has been made evident, will be prolonged not because of a lack of resources but because of the inequitable distribution of these resources.
Supporting the COVAX facility
The COVAX Facility (coordinated by Gavi, the Vaccine Alliance, the Coalition for Epidemic Preparedness Innovations and the WHO) seeks to make 2 billion doses of the vaccine available globally in a manner that is proportionate to the risk and level of need of each State starting with high-risk groups including healthcare workers in each country. While 172 States have expressed their commitment to the COVAX Facility, the secrecy behind the bilateral agreements struck between high-income States and pharmaceutical companies continue to debilitate its efforts. Even though it has managed to secure the necessary doses to vaccinate 20% of the global population starting with the high-risk groups, there is still uncertainty about when they will be made available to the Facility. The objective has been further frustrated by pharmaceutical companies prioritising the pursuit of regulatory approval for their vaccine in the States that have entered into bilateral agreements with them, instead of submitting the documents to the WHO for necessary emergency use recommendations.
On a more positive note, President Biden on his first day in office halted the withdrawal of the US from the WHO and announced its intention to join the COVAX Facility. It is hoped that this will encourage other States to assist the COVAX Facility in fulfilling its objectives.
The Covid-19 pandemic has highlighted our desperate need for an international framework to deal with global pandemics and even other global crises such as climate change. It is hoped that preventing another death toll like the 2 million lives lost in the past year will be motivation enough for States to do the right thing for the world as a whole.