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  • Poorva Bhatia

COVID-19, Global South and International Law-How Will Law Treat Medicine Once the Pandemic subsides?

This post has been authored by Poorva Bhatia, a third year student at the O.P Jindal Global University pursuing B.A., LL.B. (Hons.) course.


1. Adopting a Third World Approach to International Law (TWAIL): Past lessons, Patents and Access to Medicines


​Internationally, the developments in the field of intellectual property rights and human rights have been largely independent. However, in recent times, the interplay between them, specifically between medical patents and right to health, cannot be denied. (1) This became the issue of much discussion internationally, especially during the HIV/AIDS crisis where the issue of lack of access to affordable medicines in developing countries came to the spotlight. (2)


Today, the world faces another pandemic by the name of Covid-19. While the rationale behind granting monopolizing patent rights to pharmaceutical companies in order to encourage and boost the technological and biomedical research cannot be denied, the current post aims to view the same through the eyes of a TWAIL academic. A TWAILian lens has been adopted for this paper in order to emphasize upon the equality of third-world people and to insist that all thoughts and actions concerning international patents law should proceed on the assumption that third-world people deserve no less dignity, no less security, and no less rights or benefits from international action than do citizens of the Global North. (3) As is evident from the magnitude of the HIV/AIDS crisis in Sub-Saharan Africa in the past, it can be said that international law plays a crucial role in helping to legitimize and sustain the unequal structures and processes which often result in a growing global North-South Divide. (4) Often, under the garb of ‘neo- liberalization’, private property rights of the Global North are prioritized and policies with grave socio-economic implications for the poor in the third world countries are promoted without any accountability or much human rights discourse. (5)


2. People’s Vaccine and Global Access: Historic Resolution or Utopian Dream?


Under some special circumstances such as the ongoing pandemic, World Trade Organization’s TRIPS agreement (Trade-Related Intellectual Property Rights) allows countries to grant compulsory licenses to companies to produce a patented product under an emergency situation.(6) Moreover, companies also have the option of using the voluntary Medicines Patent Pool to license medicines for Covid-19 and pool intellectual property to ensure affordable access in low and middle-income countries. (7)


Barring these limited exceptions, it is interesting to note that UNAIDS has called for a “People’s Vaccine” via an open letter which is signed by over 150 global leaders, advocating for “mandatory worldwide sharing of all Covid-19 related knowledge, data and technologies with a pool of Covid-19 licenses freely available to all countries”. (8) It uses very evocative language and calls for global solidarity in use of the resources for fighting the current pandemic. This is an unprecedented move as for the first time in history, such sentiments have been advocated unanimously. It is also unprecedented because it does not shy away from addressing the history of unequal access in dealing with diseases and condemns ‘monopolies, crude competition and near-sighted nationalism’ in dealing with the current pandemic. (9) Additionally, it also advocates for the empowerment of countries and to utilize the flexibilities in the WTO Doha Declaration on the TRIPS Agreement and Public Health to give access to medicines for all. This letter is an extension of the sentiments shared by countries roughly a month ago which were brought about through a UN General Assembly resolution (hereinafter “UNGA”) in which the Member States called for “equitable, efficient and timely” access for all countries to any future vaccines developed to fight COVID-19. (10)


Interestingly, both the UNAIDS Open letter and UNGA resolution have resulted in the adoption of a World Health Assembly resolution titled Covid-19 Response, which was passed recently without any objections. (11) This resolution is a significant step as it mirrors the sentiments shared in the open letter. Furthermore, it emphasizes “the role of extensive immunization against COVID-19 as a global public good for health in preventing, containing and stopping transmission in order to bring the pandemic to an end, once safe, effective, accessible and affordable vaccines are available”. (12)


However, I wish to argue that these ‘calls for solidarity’ present an overly simplistic narrative. The reality is, in fact, much more complex and nuanced, given the authoritarian interests of the global north. In fact, US has already expressed its reservations on the resolution and has dissociated from certain sections of the resolution. (13) US believes that the resolution sends “the wrong message to innovators who are essential to the solutions which the whole world needs” as resolutions such as this one are “misinterpretations of international trade obligations which may negatively affect countries’ abilities to incentivize new drug development and expand access to medicines”. (14) Additionally, it must be kept in mind that while this resolution is diplomatically historic, it is still legally non-binding on the sponsoring nation states.


3. Need for Global Access Agreements before vaccine is developed:


A disturbing, me-first bilateral approach of the nations can already be seen wherein governments in a hurry to gain access to a working vaccine by the end of this year, have started setting up incentive structures that would entice manufacturers to enter into agreements which would secure early national access to the vaccine. This is being made possible by advance purchase agreements i.e. in return for the right to buy a specified number of vaccine doses in a given time-frame, governments would finance part of the upfront cost faced by vaccine producers. For example, recently, the United States government signed a $1.95 billion agreement with Pfizer Inc. and BioNTech securing 100 million doses of their coronavirus vaccine for its citizens. (15)


Similarly, U.K has signed a deal with Sanofi, GlaxoSmithKline for 60 Million Doses which would enable the British Government to secure early access to four different potential COVID-19 vaccines. (16) As seen from above, it cannot be denied that at present all the countries are in the vaccine race (17) with noble goals to overcome the pandemic. However, the reality of biotechnology being the key player in global power relations cannot be denied. While as elaborated in the previous section, all the key players in the vaccine race have pledged to provide the vaccine at no profit/low cost during the pandemic, the real test would come post the immediate containment of the pandemic.


As expressed by many experts, vaccines against virus are notoriously difficult to develop and in addition to that, Covid-19 has a very real potential to become yet another endemic virus in our communities and never go away. (18) Yet, given the unprecedented levels of global collaboration and funding across governments, international organizations, universities and pharmaceutical companies, it is possible that we might have a workable vaccine in a few months. (19) The next question which the larger international community would be faced with is whether the fight against COVID -19 stops with the successful development of the vaccine. At present, there is no unified global system to oversee the allocation of vaccine manufacture and supply. (20)


Given not just the obvious health perils but also the economic and social costs of this virus, it is not unreasonable to presume that the countries who have the technology and resources to manufacture the vaccine would face the pressure to make the vaccine available to their own population first. The history of the international community in dealing with the breakout of diseases is a testament to this inequality. For example, the life-saving drugs for HIV/AIDS and Swine flu were made available at affordable rates to the African populations much later than their European or North-American counterparts.


At present, many third world countries are left in a very delicate situation wherein they just have to rely on assurances of the industrialized countries which may not be strictly binding in nature. Thus, we need global access agreements which are binding before a vaccine is developed to ensure that the distribution of such vaccines is done in an equitable manner with such life-saving drugs being legally treated as ‘global public goods’. (21)


Another major reason for advocating for such global access agreements is to ensure its binding in international law as a legitimate rule of international law. WHA Resolution merely includes norms that have not yet been internalized and is not backed by process value. It can be said to be a form of aspirational international law which is a mere moral obligation, which may or may not be observed by States. (22)


4. Conclusion


​This pandemic post the vaccine development stage has the very real potential of furthering the interests of the rich countries, primarily global north, which have already suffered huge economic losses and might use COVID-19 as an excuse to re-frame global health policies for their limited national interests. This might increase the inequities, which already plague global health and further concentrate power among the rich countries. While the current global solidarity for ‘people’s vaccine’ is a welcome step in the right direction, it is definitely not enough as the principles for the same need to be codified in the form of legitimate and binding rules.


ENDNOTES:

1. Patents and Medicines: The relationship between TRIPS and the human right to health by Philippe Culet < http://ielrc.org/ content/ a0301.pdf>

2. World Trade Organization 4th Ministerial Conference Doha on TRIPS and Public Health Accessed on 10th June, 2020 < https://www.wto.org/english/thewto_e/minist_e/min01_e/brief_e/doha_presspack_e.pdf >

3. Okafor, Obiora Chinedu. Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective. Osgoode Hall Law Journal. Vol. 43, No. 1 & 2 (2005)

4. B.S. Chimni. Third World Approaches to International Law: A Manifesto. International Community Law Review 8: 3-27 (2006)

5. Ibid. Also, it is interesting to note that initially, the preamble to TRIPS agreement asserts that “intellectual property rights are private rights”, but doesn’t talk of the “right to

health” of individuals which thus is invariably subjected to the rights of the patent holders, thus omitting any discussion of the accountability of pharmaceutical companies

6. Article 31, TRIPS Agreement Accessed on 11 th June, 2020 <https://www.wto.org/english/docs_e/legal_e/31bis_trips_04c_e.htm>

7. The Medicines Patent Pool stands ready to offer support as needed in access to treatment for the coronavirus. Accessed on 10 th June, 2020 < https://medicinespatentpool.org/mpp-media-post/the-medicines-patent-pool-stands-ready-to-offer-support-as-needed-in-access-to-treatment-for-the-coronavirus/>

8. UNAIDS Press Release ‘World leaders unite in call for a people’s vaccine against

COVID-19’ Accessed on 10 th June, 2020 <https://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2020/may/20200514_covid19-vaccine>

9. Ibid

10. Resolution adopted by the General Assembly on 20 April 2020 ‘International cooperation to ensure global access to medicines, vaccines and medical equipment to face COVID-19’ Accessed on 10 th June, 2020 <https://undocs.org/en/A/RES/74/274>

11. Seventy-Third World Health Assembly, Agenda Item 3 on 18 May 2020 ‘Covid-19

Response’ Accessed on 10 th June, 2020 <https://apps.who.int/gb/ebwha/pdf_files/WHA73/A73_CONF1Rev1-en.pdf>

12. Ibid

13. Written Statement by United States of America, World Health Assembly, World Health Organization Explanation of Position “COVID-19 Response” Resolution Accessed on 10 th June, 2020 <https://apps.who.int/gb/statements/WHA73/PDF/United_States_of_America2.pdf>

14. Id. Taken from the previous source.

15. US agrees to pay Pfizer $2bn for Covid-19 Vaccine doses by end of year- Accessed on 30th July, 2020 <https://www.theguardian.com/us-news/2020/jul/22/pfizer-coronavirus-covid-vaccine-us-deal>

16. Coronavirus vaccine: UK signs deal with GSK and Sanofi- Accessed on 30th July, 2020 <https://www.bbc.com/news/business-53577637>

17. More information regarding vaccine race can be read here- Which are the front-runners in the COVID-19 vaccine race? Accessed on 10 th June, 2020 <https://newseu.cgtn.com/news/2020-06-04/Which-are-the-front-runners-in-the-COVID-19-vaccine-race--R0lGlNSeKA/index.html>

18. This view has been endorsed by WHO’S emergencies director Dr. Michael Ryan and

WHO epidemiologist Maria van Kerkhove during a virtual press conference in Geneva. Accessed on 10 th June, 2020 <https://www.bbc.com/news/world-52643682>

19. According to the latest WHO Data, there are over 200 vaccine candidates in development globally. Accessed on 10 th June, 2020 <https://www.who.int/publications/m/item/draft-landscape-of-Covid-19-candidate-vaccines>

20. This view has also been endorsed by Dr Seth Berkley, CEO of Gavi — The Vaccine

Alliance, a partner of the Bill & Melinda Gates Foundation, which works for better and more equitable access to vaccines. Accessed on 10 th June, 2020 <https://m.economictimes.com/news/international/world-news/coronavirus-exit-strategy-depends-on-getting-vaccine-to-whole-world/articleshow/75501680.cms>

21. An expert explains: ‘We need global access agreements before a vaccine is developed’

Dr. Seth Berkley. Accessed on 30 July, 2020 < https://indianexpress.com/article/explained/an-expert-explains-we-need-global-access-

agreements-before-a-coronavirus-vaccine-is-developed-6387936/>

22. Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 Iowa L. Rev. 65 (1997).

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