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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

From Vaccine Nationalism to international equal access to it: A legal Perspective

Introduction

While the entire world is crippling down by the global Covid-19 pandemic for the past 9 to 10 months now, the completion of the final stages of several different vaccines produced by companies all around the world, despite geographical boundaries, had been a major breather for all of us. But that takes us to a very important question, now that these pharmaceutical companies are ready to sell these vaccines how is the vaccine production and distribution being managed?

India’s recent move of stepping forward to ensure COVID-19 vaccination drive in all of Syria, while the other countries are busy stocking twice the amount of vaccines actually required, is indeed the right kind of approach in making the vaccines equally and globally accessible to all.

A database on vaccine contracts compiled by duke university on which a major report by The new york times is based, explains to us how the leading and advanced countries have selfishly procured vaccine contracts well in advance leaving no consideration for the developing and poor countries. It briefs the public about the advance purchase contracts some developed, rich countries have entered into with these pharmaceutical giants, these are so many vaccines in number that it would apparently vaccinate their entire population not just once but many times. The European Union will buy vaccines of the amount that it would vaccinate its entire economy by 2 times, similarly the united states of america and the united kingdom, 4 times, Canada, 6 times!

Several experts from a plethora of diverse backgrounds believe, more than vaccine nationalism it’s about the fight to power. Several economies have been hit severely by the pandemic and these countries now want to play monopoly over these vaccines by procuring almost all of them leaving little choice for the underdeveloped or poor countries. Principles of economics teach us that when something is an essential good but its existence is in shortage, its supply Is less but the demand is way more, thereby directly impacting the prices by increasing it. In this particular case, the low income or underdeveloped countries would be even more dependent on the rich countries then they already are, for the purposes of borrowing and trading goods in low prices to these countries. This means they would basically be selling commodities at much lower prices, in order to borrow money to buy vaccines.

Now the question we must arrive at, is what are the provisions in international laws, statutes, or treaties that prevent this monopoly from happening?

To start from the very basic, the sustainable development goals, also known as the global goals were officially ratified and adopted by all the united nations member countries in 2015 to end poverty, improve economic growth, adopt responsible consumption and production, promote good health, and well being, reduce inequalities and develop strong institutions to serve peace and justice, among others. In the current scenario, all of these above-mentioned SDGs are being violated. These super-rich nations’ actions are in violation of these SDGs that they themselves have adopted and agreed to implement by 2030.

Other than this flexibilities under the TRIPS agreement(Trade related aspects of intellectual property rights) of the WTO(World trade organization) for public health emergencies under article 31 states that use of patented medicines or drugs have to be permitted, if the proposed user country has made several efforts to procure that particular drug or obtained authorization from the right holder on reasonable commercial terms and that such efforts have not been successful within a particular period of time. This requirement has to be fulfilled by WTO member countries in the case of a national or global emergency or other circumstances of extreme urgency or in cases of public non-commercial use. Within its purview also comes medical health and life threatening emergencies. Moreover, the WTO members during the 2001 Doha declaration on TRIPS and public health emphasized the flexibilities of article 31 adding that they agree and affirm that the agreement can and should be interpreted and implemented in a manner supportive to WTO members’ right to protect public health and in particular, to promote access to medicines for all.

Nations that are parties to the International Covenant on economic, social, and cultural rights are also bound by legal obligations to hold the responsibility to use resources efficiently and not selfishly. Article 2(1) of the International Covenant on economic, social, and cultural rights puts the countries under the obligation to take steps, singularly and through collaborative assistance and international co-operation, especially economic and technical, to the maximum of its resources with a view to achieving the full realization of the rights recognized in the present Covenant by all appropriate means.

Most importantly, the right to the highest attainable standard of physical and mental health is made explicit in Article 12(2)(c) and (d) stating that “the steps to be taken by the Member nations to unleash the full potential of this right shall include those necessary for (c) the prevention, treatment, and control of epidemic, endemic, occupational and other diseases and (d) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Thus, the essential duty to cooperate under Article 2(1) of the ICESCR is the right to health in lines with Article 12 of the ICESCR is all too clear that cooperation MUST include the absolute necessity that is to prevent, treat, and control epidemics, including global pandemics such as COVID-19. Under Article 23 of the ICESCR, international action to realize all economic, social, and cultural rights under the Covenant can include “furnishing technical assistance”.

All of these international treaties and covenants emphasize equitable distribution in times of emergencies, bulk consumption of necessity goods or commodities in times of a global life-threatening pandemic is highly discouraged and can invite penalties or serious consequences internationally since these nations are legally responsible both towards other nations and individuals and it can be held responsible for all the actions caused by itself or its officials in the event of its wrongful conduct.

India’s Concerted efforts at global cooperation and support

The condition today is that 82% of Pfizer’s production in 2021 to 78% of Moderna’s has already been advance purchased by the rich countries. While these countries have been constantly procuring more and more vaccines and leading several immunization drives India has empathized with the global needs of the underdeveloped and comparatively poorer nations, India has vowed to permit exports of a significant percentage of the approved doses to these countries. While its exports to neighboring countries will be under grant mode, the initial shipment of vaccines to the least developed and poorest of countries will be free of cost. Brazil has already received 2 million doses of vaccine from India.

The unfulfilled promise of COVAX

The COVAX project aimed for pooled procurement, equal and fair distribution of COVID-19 vaccines, it was developed as an ambitious risk-sharing mechanism program based on funding from high and middle-income countries. Although with a strong motive and zeal initially, the project started out great, it has now become a lost hope for the underdeveloped and poor countries since these high and middle-income countries who were supposed to fund the project have been buying up a large amount of the vaccine directly from suppliers, actions and circumstances that absolutely should not take place was the very purpose the project stood for. Given the development of these new events, the promise by COVAX to deliver 2 billion doses by the end of 2021 seems to face new challenges and therefore its likelihood of occurrence seems like a grim possibility. Sadly the unfortunate increase in chauvinist tendencies of the modern globalized world, during the pandemic has challenged the notion of global cooperation, concerted efforts, and a united world.
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Author: NIDHI KALENMIMS, School of Law, Bengaluru

 

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