A Needle in a Haystack? Human Rights Framing at the World Trade Organization for Access to COVID-19 Vaccines

During the pandemic, the world has witnessed drastic inequitable access to COVID-19 vaccines and other medical countermeasures whereby some high-income countries secured priority access to vaccine supplies, often to the detriment of access in low- and middle-income countries. In October 2020, India and South Africa proposed to WTO members a measure of last resort, considering the general unwillingness of COVID-19 vaccine developers to voluntarily license or share their IP, knowledge, and know-how. India and South Africa’s proposal sought a temporary waiver from certain provisions of the TRIPS Agreement (e.g., patents, trade secrets, and copyright and industrial designs) in relation to products for the prevention, containment, and treatment of COVID-19. Despite the potential utility of a human rights frame for trade negotiators, explicit references to human rights were noticeably absent from this waiver proposal. This observation raises questions about the modern role of human rights language in trade negotiations relevant for public health.

In their article, Perehudoff and co-authors Heba Qazilbash and Kai Figueras de Vries investigate how and why implicit and explicit human rights language is used by WTO negotiators in debates about intellectual property, know-how, and technology needed to manufacture COVID-19 vaccines. They found that WTO negotiators used little explicit human rights language in relation to IP and COVID-19 vaccines. Supporters used both explicit and implicit human rights references to garner support for the waiver proposal, while opponents and members with undetermined positions on the waiver used only implicit language to advocate for alternative proposals. This study has identified arguments and counterarguments for using a human rights frame in WTO discussions on IP and access to medicines. These arguments may be relevant for WTO negotiators and observers seeking to influence the outcome of the forthcoming negotiations on COVID-19 therapeutics and diagnostics, as well as on broader issues of trade and public health.

The Right to Science as a Guidepost for Fair Access to COVID-19 Vaccines: Investigating the Interpretive Role of the United Nations Committee on Economic, Social and Cultural Rights

The right to participate in and enjoy the benefits of scientific progress and its applications (“right to science”) has recently emerged and been lauded as potentially transforming persistent theoretical debates and practical societal challenges in science policy. One of these persistent debates is where duties lie to develop and make widely accessible lifesaving medical technologies, particularly in a health emergency. In their article, Perehudoff and co-author Jennifer Sellin examine the contours and content of state obligations with regard to pandemic vaccine supply under the right to science (article 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights), focusing on three aspects of state obligations:

1. mobilizing public resources for developing and disseminating the benefits of scientific progress in areas of public health need;
2. preventing unreasonably high medicines prices;
3. and international cooperation, particularly in a globalized health emergency.

The United Nations Committee on Economic, Social and Cultural Rights regularly assesses state parties’ implementation of their obligations under the covenant, culminating in the issuing of concluding observations, which often serve as a basis for the next round of periodic reporting by states and can thereby direct future state action. The analysis of the authors on the committee’s concluding observations reveals that the committee has inconsistently applied its own guidance on the right to science regarding medicines and intellectual property in these monitoring exercises. These findings inform a rights-based response to medical innovation for health crises and advance the Sustainable Development Goal target on medicines research and development.