TWN Info Service on UN Sustainable Development (Oct21/05)
21 October 2021
Third World Network

COVID-19: UN experts call for urgent action on universal access to vaccines
Published in SUNS #9442 dated 21 October 2021

Geneva, 20 Oct (Kanaga Raja) – A group of six UN independent experts has sent letters to G7 and G20 countries, the European Union, the World Trade Organization, as well as a number of pharmaceutical companies calling for immediate collective action to ensure equal and universal access to COVID-19 vaccines.

In their communications sent on 14 October to the G7 and G20 States, pharmaceutical companies and international organizations, the human rights experts emphasized that under international human rights law, everyone is entitled to have access without discrimination to a COVID-19 vaccine that is safe, effective and timely, ensuring that all can enjoy the benefits of scientific progress necessary for the enjoyment of the highest attainable standard of health.

Governments, international organizations, companies, and civil society have undertaken important efforts to ensure equitable, affordable, fair, safe, timely, and universal access to COVID-19 vaccines, they noted.

However, more is required, including through synergies between the public and private sectors and multilateral efforts, to enhance timely, global and equitable access to safe, effective and affordable COVID-19 vaccines, said the UN experts.

They also underlined that States have a collective responsibility to use all available means to facilitate faster access to vaccines, including by introducing a temporary waiver of relevant intellectual property rights under the TRIPS Agreement, to ensure that protection of patents concerning the vaccines does not become a barrier to the effective enjoyment of the right to health.

The six UN independent experts that signed the letters are: the Chair of the Working Group on the issue of human rights and transnational corporations and other business enterprises, Mr Surya Deva; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Ms Tlaleng Mofokeng; the Special Rapporteur on extreme poverty and human rights, Mr Olivier De Schutter; the Special Rapporteur on the right to development, Mr Saad Alfarargi; the Independent Expert on promotion of a democratic and equitable international order, Mr Livingstone Sewanyana; and the Independent Expert on human rights and international solidarity, Mr Obiora C. Okafor.

The UN experts had sent letters to the G7 and G20 States as well as the European Union and the WTO.

The experts also sent letters to several leading pharmaceutical companies that are producing or developing COVID-19 vaccines and their home States, including Pfizer, Novavax Inc, Moderna, Sinopharm Group, Sinovac Biotech, Serum Institute of India, Johnson and Johnson, BioNTech, and AstraZeneca.

UN EXPERTS’ LETTER TO THE WTO

The over 40 letters* sent by the experts to the G7 and G20 States, pharmaceutical companies and the international organizations sought clarification on information the experts had received pertaining to COVID-19 vaccines.

[* See https://spcommreports.ohchr.org/TmSearch/RelCom?code=ARG%205/2021]

In their letter, in particular, to the World Trade Organization, the UN experts expressed concern about the unequal access to COVID-19 vaccines, medicines, health technologies, diagnostics and health therapies within and between countries, affecting negatively several human rights, particularly of individuals and people living in low- and middle-income countries, exacerbating inequality and discrimination and impeding the realization of a democratic and equitable international order.

The UN experts acknowledged the efforts made so far in different bodies of the World Trade Organization in order to assist Member States in advancing negotiations towards ensuring equitable, affordable, fair, safe, timely, and universal access to COVID-19 vaccines.

“We would like to assure you of our support to the work of the WTO towards moving beyond existing limitations related to intellectual property rights that have made access to COVID-19 vaccines unequal and unfair around the world, and our willingness to cooperate in finding solutions and effective alternatives together with you to the concerns raised below,” they said in their letter to the WTO.

Highlighting these concerns, the UN experts noted that while as of 27 September 2021, 44.5 per cent of the world population has received at least one dose of a COVID-19 vaccine, only 2.2 per cent of people in low-income countries received at least one dose, compared with almost 50 per cent of those fully vaccinated in high-income countries.

The experts pointed out that the WHO recently announced that even though more than 5 billion vaccines have by now been administered worldwide, progress has been highly uneven: almost 75 per cent of those doses have been administered in just 10 countries.

According to a recent estimate by researchers, most people in the poorest countries will need to wait another two years before they are vaccinated against COVID-19.

Referring to the proposal made by the governments of India and South Africa on 2 October 2020 for a temporary waiver of certain TRIPS Agreement protections in relation to the prevention, containment or treatment of COVID-19, and whose text was revised in May 2021, the rights experts noted that while the large majority of States either co-sponsored the proposal or expressed support for it, some States opposed it and others still have abstained from taking a position.

Moreover, the experts were concerned by the lack of transparency in contracts between States and pharmaceutical companies including the limited publication of contracts worldwide, and significant redactions of key information of public interest in the few contracts that were published.

“This lack of transparency makes it difficult to monitor the pricing differences and the human rights impact of indemnification clauses as well as the compliance of the concerned companies with their responsibilities to respect the right to health and to ensure everyone can enjoy the benefits of scientific progress,” said the experts.

The partial or full built-in immunity clauses for the case of adverse side effects of the vaccines is a cause of special concern, they added.

The human rights experts also expressed concern that the speedy production of safe and effective vaccines against COVID-19 has not been followed by swift action to ensure equality of access within and between countries, which affects negatively several human rights, including the right to life, the right to the highest attainable standard of health, the right to enjoy the benefits of scientific progress and its applications, and the right to the development particularly of individuals and people living in low- and middle-income countries.

“Such unequal access to COVID-19 vaccines, medicines, health technologies, diagnostics, and health therapies within and between countries exacerbates inequality and discrimination and impedes the realization of a democratic and equitable international order.”

The experts recalled that the High Commissioner for Human Rights’ Guidance on Access to COVID-19 vaccines noted that access to vaccines and medicines is disturbingly uneven in many places, with poorer health outcomes for women and girls, national, ethnic, religious, racial and linguistic minorities, indigenous populations, persons living in poverty, LGBTI people, persons with disabilities, migrants, particularly undocumented migrants, stateless persons and others experiencing marginalization.

They said COVID-19 infection rates and outcomes for minorities and people in vulnerable groups have mirrored these patterns, in part due to structural inequalities and discrimination.

These facts raise a substantial risk that these populations and groups will fall behind in vaccination rates relative to others, they added.

The rights experts recalled that earlier this year, the Human Rights Council amongst others called for “equitable, affordable, timely, and universal access for all countries”.

It reaffirmed vaccine access as a protected human right and expressed “concern that the unequal distribution of vaccines delays the end of the pandemic.”

The rights experts also recalled that under the International Covenant on Economic, Social and Cultural Rights, everyone is entitled to have access without discrimination to a COVID-19 vaccine that is safe, effective and based on the application of scientific progress necessary to enjoy the highest attainable standard of health, and that the Committee on Economic, Social and Cultural Rights adopted a specific General Comment (No. 25) on this issue.

They also pointed out that as spelled out by the Declaration on the TRIPS Agreement and Public Health, adopted on 14 November 2001 at the Doha WTO Ministerial Meeting, intellectual property rights cannot become a barrier to the effective enjoyment of the human right to health and States must be allowed to interpret intellectual property rules in a way that supports public health both in access to existing medicines and in creation of new technologies.

According to the experts, this implies that States must first ensure that access to essential medicines and vaccines is not impeded by intellectual property rights; secondly help countries develop medicines and vaccines quickly to meet the demand.

Furthermore, they noted that the Global Health Summit of the leaders of the G20 and other states issued on 21 May 2020, the Rome Declaration.

This Declaration underlined the urgent need to scale up efforts, including through synergies between the public and private sectors and multilateral efforts, to enhance timely, global and equitable access to safe, effective and affordable COVID-19 tools (vaccines, therapeutics, diagnostics, and personal protective equipment).

Under the Guiding Principles on Business and Human Rights and under the Guiding Principles on Extreme Poverty and Human Rights, endorsed by Human Rights Council resolutions 17/4 and 21/11, States have a duty to take measures to ensure that business enterprises within their territory or jurisdiction conduct effective human rights due diligence to identify, prevent, mitigate and account for how they address their impacts on human rights throughout their operation.

The experts also pointed to amongst others Article 1 of the Declaration on the Right to Development adopted by the United Nations General Assembly by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development.

They said that the Draft Declaration on human rights and international solidarity, which calls for countries to avoid being blinded by national or local self-interest and encourages more cooperation between countries as an imperative to address these issues, has taken on a renewed importance and urgency.

“In the context of COVID-19 pandemic, the need for a speedy adoption by Member States of the Draft Declaration should also become a priority.”

In this context, the UN independent experts said they would like to enquire about the results of the WTO’s recent negotiations and anticipated timeline for the resolution of the proposed temporary waiver of certain COVID-19 TRIPS protections to ensure that intellectual property rights on the vaccines do not become a barrier to the effective enjoyment of the fundamental human rights.

In this regard, they drew attention to Principle 10 of the Guiding Principles on Business and Human Rights, which provides that: “States, when acting as members of multilateral institutions that deal with business-related issues, should: (a) Seek to ensure that those institutions neither restrain the ability of their member States to meet their duty to protect nor hinder business enterprises from respecting human rights”.

The UN experts also said that they would welcome information related to advances made by member States of the WTO in using already existing national tools and mechanisms, such as the government use of compulsory licensing orders under the TRIPS Agreement to produce and distribute vaccines in the public interest, to scale up production of vaccines and treatments against COVID-19 and to open more opportunities for dissemination to a larger number of the population.

“We would equally appreciate information on requests received and/or discussions held within the WTO about the provision of technical assistance and support by WTO to States to find solutions at national level if the intellectual property rights on vaccines, medicines, health technologies and therapies would be eventually lifted at international level.”

The rights experts said that they would also like to enquire about accountability mechanisms available within the WTO for those Member States that might not act in good faith in the pandemic-caused health crisis and undermine the right of people to get access to equitable, affordable, fair, safe, timely, and universal access to COVID-19 vaccines, medicines, health technologies and therapies.

“We would be grateful to learn more about the risks identified and the measures taken in this respect by the bodies of the WTO,” they added.

The rights experts also said that they would like to enquire about regulations and policies of different bodies of the WTO on full transparency in States’ contracts with pharmaceutical companies purchasing vaccines, including all elements of vaccine development, procurement, and provision to support the efforts of States and companies domiciled on their territory to comply with international law and their related responsibilities and that such compliance can be effectively monitored and enforced, especially regarding the pricing policies and the human rights impact of indemnification clauses, as well as the partial or full built-in immunity clauses for the case of adverse side effects of the vaccines.

“As it is our responsibility under the mandates provided to us by the Human Rights Council, to seek to clarify the above-mentioned concerns, we would like to ask your organization to provide any additional information and/or any comment(s) you may have on the issues raised,” the UN experts concluded.