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Info Service on Intellectual Property Issues (Sept23/01) Penang, 1 Sep (Kanaga Raja) — The United Nations Committee on the Elimination of Racial Discrimination (CERD) has called on State parties in the North, in particular Germany, Switzerland, the United Kingdom and the United States, to waive intellectual property rights (IPRs) on COVID-19 pandemic protections, vaccines, treatments, and healthcare technologies. In a Decision adopted on 30 August, the Committee stressed that the persistent refusal to agree to a waiver of the TRIPS Agreement or to take other measures to the same effect, raises concerns regarding the obligations of State parties under the International Convention on the Elimination of All Forms of Racial Discrimination as well as other international human rights guarantees. The Committee on the Elimination of Racial Discrimination, comprising 18 independent human rights experts drawn from around the world, monitors the 182 States parties’ adherence to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The Decision on “the lack of equitable and non-discriminatory access to COVID-19 vaccines” was adopted under the Committee’s early warning and urgent action procedures, which aim to consider situations that might escalate into conflicts in order to take appropriate preventive actions to avoid full-scale violations of human rights. The Decision was endorsed by Ms Ashwini K. P., the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. In its Decision adopted on 30 August, the Committee expressed concern that COVID-19 remains a serious public health issue with devastating negative impacts that are falling disproportionately on individuals and groups vulnerable to racial discrimination, in particular persons of African or Asian descent, those belonging to national or ethnic minorities, Roma communities, and indigenous peoples. Citing the latest data from the World Health Organization (WHO), the Committee said about 32 per cent of the global population has received at least one booster or additional dose of vaccine. However, in developing countries such as Gabon, Papua New Guinea, Burundi and Madagascar, the proportion is less than 1 per cent. In its Decision, the Committee reiterated its earlier statement of 25 April 2022 (“Statement 2” of 2022) on the lack of equitable and non-discriminatory access to COVID-19 vaccines. In the statement issued during its 106th session held from 11-29 April 2022, the Committee had expressed deep concern that “the vast majority of COVID-19 vaccines have been administered in high- and upper-middle-income countries and that, as of April 2022, only 15.21% of the population of low-income countries has received even one vaccine dose, creating a pattern of unequal distribution within and between countries that replicates slavery and colonial-era racial hierarchies; and which further deepens structural inequalities affecting vulnerable groups protected under the Convention.” The statement had noted that the States parties of Germany, Switzerland, and the United Kingdom of Great Britain and Northern Ireland had “opposed a request spearheaded by India and South Africa in October 2020 at the WTO to temporarily waive intellectual property protections on healthcare technologies concerning COVID-19 prevention, containment or treatment imposed by the TRIPS Agreement (later revised in May 2021)”, and that in addition, Germany, Switzerland, and the United Kingdom of Great Britain and Northern Ireland “have failed to mandate technology transfers by nationally based pharmaceutical companies that insist on guarding their intellectual property monopolies on COVID-19 healthcare technologies”. The Committee further noted that while the State party of the United States of America had “declared support for a narrow vaccines-only waiver, it has failed to use all its available tools, including activating its Defense Production Act, to mandate COVID-19 healthcare technology transfers from nationally based pharmaceutical companies.” In its statement on 25 April 2022, the Committee had reiterated its call on States parties, in particular Germany, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America, “to combat the COVID-19 pandemic guided by the principle of international solidarity through international assistance and cooperation, including by supporting the proposal of a comprehensive temporary waiver on the provisions of the TRIPS Agreement, and taking all additional national and multilateral measures that would mitigate the disparate impact of the pandemic and its socioeconomic consequences on groups and minorities protected under the Convention.” It is against this backdrop that the Committee on 30 August 2023 joined the UN High Commissioner for Human Rights in urging States parties, in particular Germany, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America, “to not allow economic interests and corporate commitments to be prioritized over respect for human rights, and instead to prioritize the safety and protection of vulnerable and marginalized populations through non-discriminatory policies consistent with ICERD.” FULL TEXT OF CERD DECISION The full text of the Committee’s Decision on the lack of equitable and non-discriminatory access to COVID-19 vaccines is highlighted below: “The Committee on the Elimination of Racial Discrimination, meeting in Geneva at its hundred-tenth session, from 7 to 31 August 2023, Acting under its Early Warning and Urgent Action Procedure; Recalling its Statement of 7 August 2020 on the Coronavirus (COVID-19) pandemic and its implications under the International Convention on the Elimination of All Forms of Racial Discrimination; Recalling its Statement 2 (2022) of 25 April 2022 on the lack of equitable and non-discriminatory access to COVID-19 vaccines, calling on State parties to vote in the World Trade Organization on a waiver to provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) regarding COVID-19 pandemic protections, vaccines, treatments, or healthcare technologies; Recalling also the open letter from the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance to the World Trade Organization’s Twelfth Ministerial Conference, of 13 June 2022, in relation to consideration of a waiver of certain provisions of the TRIPS Agreement for the prevention, containment and treatment of COVID-19; Concerned that COVID-19 remains a serious public health issue with devastating negative impacts that are falling disproportionately on individuals and groups vulnerable to racial discrimination as defined in Article 1 of the Convention, in particular persons of African or Asian descent, those belonging to national or ethnic minorities, Roma communities, Indigenous Peoples, non-citizens, living in both the global North and South countries; Noting that the current challenges of inequality can be significantly mitigated by sharing access to intellectual property rights to life-preserving patents to vaccines, treatments and related technologies which are currently reserved by a few countries in the global North; Concerned that the Ministerial Decision on the TRIPS Agreement, adopted on 17 June 2022 at the twelfth Ministerial Conference of the World Trade Organization, does not go far enough to address the high rates of COVID-19 morbidity and mortality worldwide among the people and groups most exposed to racial discrimination; Noting that the State parties referred to in Statement 2 (2022), that is Germany, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America, are in a specifically powerful situation when it comes to waiving intellectual property rights under the TRIPS Agreement or taking other measures to address the lack of equitable and non-discriminatory access to COVID-19 vaccines; Noting further that the persistent refusal to vote for a waiver of the TRIPS Agreement or to take other measures to the same effect, raises concerns regarding their obligations under the Convention as well as other international human rights guarantees; Reiterates its Statement 2 (2022) of 25 April 2022 on the lack of equitable and non-discriminatory access to COVID-19 vaccines; Joins the UN High Commissioner for Human Rights, in urging States parties, in particular Germany, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America, to not allow economic interests and corporate commitments to be prioritized over respect for human rights, and instead to prioritize the safety and protection of vulnerable and marginalized populations through non-discriminatory policies consistent with ICERD; Calls upon States parties to prioritize human rights concerns and to incorporate strict human rights guarantees, including a mechanism that commits governments to suspend intellectual property rights in a health crisis, in the draft pandemic prevention, preparedness and response accord currently under negotiation at the World Health Organisation; Calls upon States parties in the global North to provide resources to enable poorer States to satisfy the core medical capacities that they are expected to have in place under the International Health Regulations and to enable vaccines, relevant medicines and other necessary equipment and supplies to be available to all in a non-discriminatory manner; Requests Germany, Switzerland, the United Kingdom of Great Britain and Northern Ireland and the United States of America to respond to the present Decision, by providing information on the measures taken to waive intellectual property protections for COVID-19 vaccines or other measures taken in order to address the high rates of COVID-19 morbidity and mortality worldwide among individuals and groups most exposed to racial discrimination.” +
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