Health as a Human Right: Why the World Trade Organization Must Grant the COVID-19 Vaccine Patent Waiver

The COVID-19 pandemic has emerged as the deadliest public health crisis in over a century.[1] Despite this, rapid scientific advancements have led to safe and effective vaccines which drastically reduce the chances of severe illness and death.[2] Given this, countries around the world should be working as quickly as possible to make the vaccine widely available as to better inoculate the world’s population and to prevent the rise of further variants. Instead, major drug manufacturers worldwide have refused to share their patents with developing countries. The World Trade Organization (“WTO”) is further compounding this issue by failing to waive those patent protections. This blog will detail the concept of health as a human right and make an argument for why the WTO should waive patent protections for the COVID-19 Vaccine and allow countries to make their own low-cost generic versions.

Health as a Human Right Within International Human Rights Law

Many documents within international human rights law have long recognized a right to health.[3] The most prominent of these documents is the International Covenant on Economic, Social and Cultural Rights (the “Covenant”) which recognizes “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”[4] Many conferences and declarations further clarify the major provisions of many of these treaties.[5] The most important of these conferences was the International Conference on Primary Health Care held in modern-day Almaty, Kazakhstan in September of 1978.[6] The result of the Conference was the Alma-Ata Declaration which called on all States to provide primary health care to permit individuals to live both socially and economically productive lives.[7] Further, the right to health is also recognized within a litany of regional human rights documents and in over 115 national constitutions.[8]

The right to health has several key aspects. Notably, the right to health is inclusive—the right to health goes beyond merely having available health care or nearby hospitals.[9] According to the Committee on Economic, Social and Cultural Rights (the “Committee”), the right to health includes many additional privileges like the right to adequate nutrition, housing, safe working conditions, and the right to health-related information and education.[10] The right to health also contains both freedoms and entitlements.[11] The freedoms include the right to be free from medical experimentation and forced sterilization.[12] The entitlements include the right to a system of health that provides the highest attainable standard of health and the right to essential medicines and treatment.[13] The right to health also requires that health care services be accessible and be of sufficiently high quality.[14]

The right to health is interconnected with several other fundamental human rights. Arguably, the most important of these is the right to be free from discrimination. The Covenant on Economic, Social and Cultural Rights notes that every human has a right to be free from discrimination based on “race, color, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status.”[15] The Committee, which monitors treaty progress, has specified that “other status” includes being HIV-positive, providing such individuals with the right to be free from discrimination based on their health status and stereotypes about sexual orientation that often accompany the disease.[16] The right to be free from discrimination in health care is further affirmed by the International Convention on the Elimination of All Forms of Racial Discrimination, which calls on States to eliminate racial discrimination and guarantee the right to medical care for all.[17]

In addition to the blanket provisions against discrimination in health care, many international treaties also list several protected classes to which particular duties are owed.[18] One of these protected classes is women.[19] The Convention on the Elimination of All Forms of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights calls for special healthcare protections for women, many of which relate to pregnancy and childbirth.[20] Children are another primary protected class.[21] The Convention on the Rights of the Child calls for several special health care services and protections to be offered to children.[22] The health of persons with disabilities, migrants, and those living with HIV/AIDS are protected under numerous other international instruments.[23]

States and various other entities have multiple duties under the right to health regime. Progressive realization is a primary duty, entailing that States must be making continual efforts to consistently achieve increasing levels of public health access and outcomes for their citizens.[24] Progressive realization assumes that not all States have the same material resources or immediate capabilities to implement the rights regimes. Still, it does expect progress to be shown at regular intervals with a goal that States will eventually attain the full realization of the right to health.[25] The idea of progressive realization also includes another implicit assumption that States rich in economic and material resources will assist other States in need to help them meet their goals.[26]

The Covenant recognizes that due to structural disparities, the implementation process from State to State will not be uniform. As a result, the Covenant simply states that parties must achieve the goals of the Covenant by “all appropriate means, including particularly the adoption of legislative measures.”[27] The Committee has set forth some minimum criteria which all States must do. For example, all States must adopt a national program by which they plan to achieve full enjoyment of the right to health.[28] Additionally, States must set concrete benchmarks to measure progress.[29] These benchmarks should include structural indicators which measure their recognition of rights, process indicators that measure efforts made to realize the right, and outcome indicators that measure the people’s satisfaction towards the actions undertaken.[30]

The Committee, which oversees the Covenant, has also laid out a minimum floor of rights that no country can derogate regardless of income or resources. These include non-discrimination, access to essential nutrition, access to basic shelter and safe drinking water, the ability of people to obtain necessary medications, and the equitable distribution of healthcare resources.[31] States also have three primary obligations related to their efforts to achieve health as a human right.[32] The first of these is an obligation to respect the right to health.[33] This requires States to refrain from negatively interfering with existing efforts being made to realize the right to health.[34] Second, States must protect the right to health by ensuring that non-state actors do not interfere with the ability of others to enjoy good health.[35] Lastly, States must enact policies to make the right to health achievable and work to ensure administrations carry the policies out.[36]

Comment 14 from the Committee stresses the importance of States protecting the right to health in their own countries and those of other countries.[37] Some have seen the WTO as a barrier to achieving this goal because of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).[38] Many have argued that TRIPS would prevent the production of low-cost generic pharmaceuticals in developing countries.[39] In response to this widespread criticism, the Ministerial Conference of the WTO decided to issue the Doha Declaration (“The Declaration”) to address the issue of patent protection for pharmaceuticals.[40] The Declaration noted that TRIPS Agreement should never prevent States from taking appropriate actions needed to maintain public health.[41]

The World Health Organization (“WHO”) and private sector businesses play important roles in the global right to health regime.[42] The WHO is primarily responsible for providing guidance and leadership on public health matters, setting health standards, and propagating research.[43] On the other hand, the responsibility of the private sector is more negative than positive. Primarily, the private sector is responsible for not hindering access to medical care through high prices.[44]

Several different organizations are tasked with holding States accountable to Convention obligations and monitoring the right to health across the world.[45] Enforcement is primarily carried out by administrative bodies, judicial entities, and non-governmental organizations at the national level.[46] Regionally, several bodies are tasked with enforcement, including the African Commission on Human and Peoples’ Rights, the Inter-American Commission on Human Rights, the Inter-American Court of Human Rights, and the European Committee of Social Rights.[47] At the international level, the treaty committees, and the United Nations Special Rapporteur on the Right to the Highest Attainable Standard of Health monitor enforcement.[48]

The COVID-19 patent waiver

In the final months of 2020, a group of developing nations led by India and South Africa called on the WTO to temporarily limit intellectual property (“IP”) protections for vaccines and other healthcare items needed to combat the pandemic until those developing countries could achieve mass vaccinations.[49] Although many major industrialized nations expressed opposition to the proposal, the United States announced its support following lobbying of President Biden by Congressional Democrats and activists.[50] The argument for the proposal is that by waiving the patents, developing nations can produce large amounts of the vaccine and necessary personal protective equipment at a much more affordable rate.[51] The waiver would do this by bolstering domestic production of these goods and by lessening demand within the global market.[52]

Many of the countries in which major pharmaceutical companies reside have voiced strong opposition to the patent waiver.[53] Domestic production of patented drugs has long been widely discouraged by the international community.[54] Those in opposition to the patent waiver argue that the incentive to continue research and development of these lifesaving pharmaceuticals will be diminished if the WTO grants the waiver.[55] Opponents of the waiver also say that the industrial capacity to make these vaccines in developing countries is not as strong as it appears.[56] They argue that mass production in developing countries will prove impossible without help from technical advisors and the importing of ingredients—some of which only exist in limited quantities.[57] Still others, particularly those on the American right, argue that waiving patents would allow the U.S.’s geopolitical enemies to exploit American IP more easily.[58] Some of these groups have argued that the answer is for the U.S. and other developing nations to donate their excess vaccines instead of waiving patents.[59]

While the U.S. and other developed countries sending vaccines to those in the developing world would be admirable, it would not be nearly enough to meet the great demand which still exists for vaccines. By not granting the patent waiver, the WTO effectively reduces the availability of vaccines to places that already have the vaccine in shortest supply, further compounding the COVID crisis for marginalized communities. In addition, by failing to grant the patent waiver, the chances of variants of the virus will also increase, prolonging the pandemic.

Given this, although not all the countries within the WTO are parties to the Convention on Economic Social and Cultural Rights, all WTO States should attempt to follow the Covenant’s provisions on health if they are serious about human rights. Even if a legal obligation does not exist, a moral imperative does exist that countries worldwide must protect their own citizens and the citizens of other countries from the significant risks the pharmaceutical lobby is posing to attaining the highest possible level of public health. The best way to do this would be by putting collective international pressure on the WTO to grant the patent waiver so developing countries can begin domestic production of vaccines and avoid the high prices demanded by multi-national pharmaceutical companies.

 

  1. Amy McKeever, COVID-19 surpasses 1918 flu as deadliest pandemic in U.S. history, National Geographic (Sep. 21, 2021), https://www.nationalgeographic.com/history/article/covid-19-is-now-the-deadliest-pandemic-in-us-history.
  2. COVID-19 Vaccines Work, Ctr. for Disease Control and Prevention (“CDC”) (Dec. 23, 2021), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/effectiveness/work.html.
  3. See International Covenant on Economic, Social and Cultural Rights, Art. 12, U.N., Jan. 3, 1976; International Convention on the Elimination of All Forms of Racial Discrimination, Art. 5 (e) (iv), U.N., Jan. 4, 1965; Convention on the Elimination of All Forms of Discrimination against Women, Arts. 11 (1) (f), 12 and 14 (2) (b), Dec. 18, 1979; Convention on the Rights of the Child, Art. 24, Sep. 2, 1990; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Arts. 28, 43 (e) and 45 (c), Dec. 18, 1990; Convention on the Rights of Persons with Disabilities, Art. 25, May 3, 2008.
  4. International Covenant on Economic, Social and Cultural Rights, Art. 12, U.N., Jan. 3, 1976.
  5. Office of the United Nations High Commissioner for Human Rights and World Health Organizations, The Right to Health, Fact Sheet No. 31. [hereinafter The Right to Health Fact Sheet].
  6. Id. at 10.
  7. International Conference on Primary Health Care, Declaration of Alma-Ata, ¶ 2, (Sep. 6, 1978).
  8. The Right to Health Fact Sheet at 10.
  9. Id. at 2.
  10. International Covenant on Economic, Social and Cultural Rights, Art. 11, U.N., Jan. 3, 1976.
  11. The Right to Health Fact Sheet at 3.
  12. Id.
  13. Id.
  14. Id. at 4.
  15. International Covenant on Economic, Social and Cultural Rights, Art. 2, U.N., Jan. 3, 1976.
  16. The Right to Health Fact Sheet at 7.
  17. International Convention on the Elimination of All Forms of Racial Discrimination, Arts. 2 and 5 (e) (iv), U.N., Jan. 4, 1965.
  18. The Right to Health Fact Sheet at 11.
  19. Id. at 12.
  20. Convention on the Elimination of All Forms of Discrimination against Women, Art. 12, Dec. 18, 1979; International Covenant on Economic, Social and Cultural Rights, Art. 10 (2), U.N., Jan. 3, 1976.
  21. The Right to Health Fact Sheet at 14.
  22. Convention on the Rights of the Child, Art. 24, Sep. 2, 1990.
  23. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Arts. 28, 43 (e) and 45 (c), Dec. 18, 1990; Convention on the Rights of Persons with Disabilities, Art. 25, May 3, 2008; G.A. Res. 60/1, 57 (Sep. 16, 2005).
  24. International Covenant on Economic, Social and Cultural Rights, Art. 2 (1), U.N., Jan. 3, 1976.
  25. The Right to Health Fact Sheet at 23.
  26. Committee on Economic, Social and Cultural Rights, E/1991/23, ¶¶ 38-42, (1990).
  27. International Covenant on Economic, Social and Cultural Rights, Art. 2 (1), U.N., Jan. 3, 1976.
  28. Committee on Economic, Social and Cultural Rights, E/1991/23, 6, (Dec. 14, 1990).
  29. The Right to Health Fact Sheet at 24.
  30. Id.
  31. Id. at 25.
  32. Id.
  33. Id.
  34. Id.
  35. Id. at 26
  36. Id.
  37. Committee on Economic, Social, and Cultural Rights, General Comment 14, 33, (Aug. 11, 2000).
  38. Salam Alshareef, How the intellectual property monopoly has impeded an effective response to Covid-19, The Conversation (Feb. 14, 2022, 1:13 PM), https://theconversation.com/how-the-intellectual-property-monopoly-has-impeded-an-effective-response-to-covid-19-173298.
  39. Id.
  40. Doha Development Agenda, Declaration on the TRIPS agreement and public health, WTO Doc. WT/MIN(01)/DEC/2 (Nov. 20, 2001)
  41. Id. at 4.
  42. The Right to Health Fact Sheet at 29.
  43. Id.
  44. Id. at 30.
  45. Id. at 31.
  46. Id.
  47. Id. at 35.
  48. Id. at 36.
  49. Anshu Siripurapu, The Debate Over a Patent Waiver for COVID-19 Vaccines: What to Know, Council on Foreign Relations (May 26, 2021), https://www.cfr.org/in-brief/debate-over-patent-waiver-covid-19-vaccines-what-know.
  50. Id.
  51. Id.
  52. Id.
  53. Id.
  54. For example, the Clinton Administration put South Africa on a trade watchlist and refused to reduce tariffs on exports in 1999 due to the countries production of generic versions of AIDS drugs patented by U.S. companies. See Drugs for AIDS in Africa, N.Y. Times, Aug. 23, 1999, at 14.
  55. Id.
  56. Id.
  57. Id.
  58. Id.
  59. Id.

 

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