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The IBA’s response to the situation in Ukraine
As Western governments proceed with their Covid-19 vaccination programmes, there are growing concerns that so-called vaccine nationalism is leaving poorer countries struggling to protect their people. According to the World Health Organization (WHO), 49 richer states had delivered 39 million vaccine doses by mid-January while one unidentified poorer nation had administered just 25.
Much has been made of the suggestion that drug companies’ determination to protect their intellectual property (IP) rights is exacerbating the situation. In October, Indian and South African representatives asked the World Trade Organization (WTO) to temporarily waive all IP rights related to the various vaccinations’ production.
For Mustaqeem De Gama, a counsellor on South Africa’s permanent mission to the WTO, the waiver would ‘open space for further collaboration, for the transfer of technology and for more producers to come in to ensure that we have scalability in a much shorter period of time’.
Chair, IBA Emerging Intellectual Property Rights Subcommittee
Jason Jardine, Chair of the IBA Emerging Intellectual Property Rights Subcommittee and a partner at Knobbe Martens, believes the focus on IP is something of a red herring, given that none of the vaccines themselves have been patented.
Some of the manufacturers have shown a willingness to share the IP related to their production processes. Moderna has said it will not enforce any of its relevant patents ‘while the pandemic continues’ and BioNTech has begun using a facility owned by French rival Sanofi to speed up production.
But Jardine is sceptical that this could be replicated on anything like the scale required to dramatically accelerate the pace of the global roll-out.
‘Scale up is a huge barrier to entry’, he says. ‘Even if you have a lab that can copy someone else’s [technology], you still have to find a way to mass produce it.’
Jardine believes regulatory issues are more of a problem for developing nations than patents, with no government able to begin their own programme of inoculation until a vaccine has been passed by its regulators. For developing countries with poor regulatory infrastructure this can be problematic.
The WHO has sought to address that with the creation of an Emergency Use Listing, a process designed to ‘open the door for countries to expedite their own regulatory approval processes to import and administer the vaccine’. So far only the Pfizer/BioNTech vaccine has been given emergency validation via the scheme.
The WHO has also sought to address problems of supply to developing nations by co-launching a scheme, Covax, that will deliver vaccines to low-income nations. Covax is funded by wealthier countries and aims to ensure an equitable distribution of vaccinations across nations.
Markus Beham, European Regional Forum Liaison Officer on the IBA Human Rights Law Committee and an assistant professor at the University of Passau, says the main issue with the programme is that it does not place any obligation on wealthier nations to take part, something that could ensure poorer countries continue to miss out.
‘Under Article 12 of the International Covenant on Economic, Social and Cultural Rights there’s an obligation on states to take steps to improve environmental hygiene to prevent and control epidemics’, he says.
'But Covax is created as an encouragement to engage, not as a direct obligation placed upon member states of the WHO’, says Beham. ‘Ideally, these commitments will lead to closer overall cooperation but there is hardly any stand-alone “hard law” to draw upon outside of that framework when it comes to vaccine distribution.’
That is problematic, says Rohini Haar, a research fellow at the University of California, Berkeley’s Human Rights Center, because it leaves room for human rights violations at the hands of governments whose citizens are supposed to benefit from Covax. As a medical adviser to not-for-profit organisation Physicians for Human Rights, Haar says this is exemplified in the case of Syria.
‘The country is split into opposition-controlled and regime-controlled areas and Covax is supposed to hit all those populations that are not necessarily going to be hit by the government’, she says.
Haar explains that the WHO works with the regime to distribute the vaccine, but Syria’s President Assad is not engaging, making distribution ‘impossible’.
‘Half of Syria will be vaccinated and half will not. Without political will it will be very hard to overcome that’, she adds.
Thomas Wilson, Website Officer on the IBA Human Rights Law Committee and a partner at Vinson & Elkins, adds that even in countries whose human rights records are apparently sound, the way governments are prioritising roll-out programmes is creating human rights issues too.
Noting that in the US priority is being given to those aged 65 and over, Wilson says there is a need to ‘think more broadly’ about at-risk populations which do not fit that age criteria.
Wilson highlights that the Hispanic population, because of where they are economically, tend to be hourly workers who must go out to work. ‘The government is doing everyone over 65, but if someone [in that group] is working remotely and not going out much are they in as much danger as a Hispanic worker in their late 50s who doesn’t have a choice about going out to work and lives in a community where quarantine is difficult?’
Melinda Taylor, Asia Pacific Region Liaison Officer on the IBA Human Rights Law Committee, agrees, noting that groups such as asylum seekers and prison detainees, neither of which are able to safely isolate, are also being excluded from high-priority lists.
For Taylor, there’s an obligation to engage in positive discrimination to ensure that vulnerable groups can access the vaccine.
‘Asylum seekers are extremely vulnerable; detainees are not necessarily being put in the upper echelons of prioritisation, but they don’t have the choice of socially distancing’, she says. ‘If you’re going to exert control over people then you need to ensure the conditions of that control.’
As vaccine supply remains limited even in countries that have bought large quantities, Taylor says ensuring the most vulnerable receive it would require governments to prioritise various human rights, something they appear unable or unwilling to do.
‘It’s very difficult to prioritise a human right’, she says. ‘States have to set out their criteria transparently and there needs to be a process of review where people can contest decisions and demonstrate special circumstances, but I haven’t seen that happening.’
Whether governments will factor in these considerations as their immunisation and aid programmes continue to develop remains to be seen. If they do not, they run the risk of allowing the virus’ spread to continue by dint of only eliminating it in certain areas.
‘Ultimately these actions will only prolong the pandemic, the restrictions needed to contain it, and human and economic suffering’, says Tedros Adhanom Ghebreyesus, the WHO’s Director-General.