9 November 2020
To date, there have been more than 49 million confirmed cases of COVID-19 and over 1.2 million deaths reported to WHO.1 This disease continues to prove more deadly than anticipated while the world carries on facing the cumulative and interconnected health, economic, social and human rights crises it has unleashed.
In October 2020, the World Bank estimated that the pandemic will push an additional of between 88 to 115 million people into extreme poverty this year, with the total rising to as many as 150 million by 2021. The World Food Programme projected that 265 million people will face crisis levels of hunger unless direct action is taken, doubling their estimations of hungry people pre-COVID-19.
These and many other figures offer only a glimpse of the exorbitant human costs of the pandemic. At the national and international levels, COVID-19 has brought to the fore systemic inequalities, aggravated pre-existing institutional weaknesses including in health, food and procurement systems, and highlighted a lack of access to quality, accessible and affordable health care for all. Socio-economic inequality has deepened even further.
At a global level, inequalities are also increasing between countries with enough economic means to face the crises and those without. Responses to the pandemic have sometimes been used as a pretext by Governments and business enterprises to undermine or lessen international human rights commitments.
In our capacity as UN human rights experts, we emphasise that a global pandemic of this scale and human cost, with no clear end in sight, requires a concerted, principled and courageous response. All efforts to prevent, treat and contain COVID-19 must be based on the bedrock human-rights based principles of international solidarity, cooperation and assistance. There is no room for nationalism or profitability in decision-making about access to vaccines, essential tests and treatments, and all other medical goods, services and supplies that are at the heart of the right to the highest attainable standard of health for all.
Since millions of people’s hope is that vaccines are developed safely and swiftly, that they are made universally available, that they are affordable, easily accessible, this statement aims at raising some of the critical human rights aspects that are intertwined with regard to the rights to life, to health and to international cooperation and assistance and to provide some recommendations for States, including the States participating at the 31st special session of the General Assembly in Response to the COVID-19 Pandemic, the private sector, financial institutions.
Tackling the pandemic individually: a path to further deaths
As the Committee on Economic, Social and Cultural Rights has underlined2 about the right of everyone to enjoy the benefits of scientific progress, “pandemics are a crucial example of the need for scientific international cooperation to face transnational threats. Viruses and other pathogens do not respect borders […] Combating pandemics effectively requires stronger commitment from States to scientific international cooperation, as national solutions are insufficient. […] If a pandemic develops, sharing the best scientific knowledge and its applications, especially in the medical field, becomes crucial to mitigate the impact of the disease and to expedite the discovery of effective treatments and vaccines.”
In a similar vein, the UN Office of the High Commissioner for Human Rights, the UN Educational, Scientific and Cultural Organization (UNESCO) and the World Health Organization (WHO), with the participation of the European Organization for Nuclear Research (CERN), recently launched a call
for Open Science. This initiative recognizes that scientific knowledge can play a role in reducing inequalities, help respond to the immediate challenges of COVID-19 and accelerate progress towards the implementation of the 2030 Agenda.
Unfortunately, it appears that some Governments have undertaken to secure vaccines for their citizens only. Isolationist health policies and procurement are in contradiction with international human rights standards.
In addition, epidemiologists and others fear that, because of the limited capacity of production of the vaccine, countries that are striking deals to secure vaccines for their own population – instead of engaging in a coordinated global effort to share them across borders– will not achieve their intended purpose. The pandemic will continue and will come back to impact those countries sooner or later, including through further economic disruption. A message, often repeated in 2020, remains essential: No one is secure until all of us are secure.
Some States have already expressed their concerns that countries with more financial means are rushing to sign deals to gain preferential access to vaccines which will in turn leave other countries behind. WHO and others have warned about the dangers of “supply and vaccine nationalism.”3 As stated by South Africa: “World leaders from the North and South have referred to vaccines as a global public good, which should be fairly and equitably available globally, leaving no one behind. Now is the time to put it into action.”4
According to Oxfam, in a note of 17 September 2020, “51 percent of the doses to be produced based on current capacity have already been reserved for countries with just 13 percent of the global population. If the rest of the world depends on the same manufacturing facilities, they will have to wait for them to deliver on their pre orders and hope that more doses can be produced before too many more die or become seriously ill.”5
International cooperation and multilateralism are vital for facilitating countries’ navigation of the present crisis and for laying the groundwork for a robust, sustained and inclusive socio-economic recovery around the world. To address the pandemic and its consequences and realize universal human rights, States should take action, both individually and jointly through international cooperation and assistance.
Availability, access and affordability at international level
In order to mitigate and contain the spread of the pandemic globally and to support national and international economic and financial recovery, it is imperative that COVID-19 diagnosis and treatment goods, including any potential vaccine, are fully available, accessible and affordable to all on this planet.
In this spirit, on 18 August 2020, WHO Director-General urged member States to join the
COVAX Global Vaccines Facility, a mechanism aimed at guaranteeing fair access for all countries, rich or poor, to effective immunization. If States do not coordinate globally, there is a high risk that global competition will increase the prices of medical supplies and of a potential vaccine which, in turn, will affect all countries. This will be of particular detrimental effect to the various developing countries already facing high debt and financial crises.
Intellectual property rights should not override States’ obligations to protect and fulfil the right to health, which entails providing for immunization and treatment against major infectious diseases to all without discrimination. The existing TRIPS regime, however, may have an adverse impact on prices and availability of medicines since, as noted by a former Special Rapporteur on the right to health, it makes it difficult for countries (especially developing and least developed countries) to promote access to medicines.6
Against this background, the petition to WTO by India and South Africa, dated 2 October 2020, to waive certain provisions of the TRIPS agreement for the prevention, containment and treatment of COVID-19 is welcome. Both countries argue that “an effective response to the COVID-19 pandemic requires rapid access to affordable medical products, including diagnostic kits, medical masks, other personal protective equipment and ventilators as well as vaccines and medicines for the prevention and treatment of patients in dire need.”7
International cooperation and assistance between developed and developing countries are crucial in ensuring that all relevant health technologies, intellectual property data and know-how on COVID-19 vaccines and treatment are widely shared as a global public good. In addition, economic soundness dictates that all countries will benefit from global action that could provide vaccines for everyone at affordable prices and cost that is hugely less than that of the COVID-19 pandemic on global and national economies.8
In this regard, the World Bank has approved $12 billion grants and highly concessional loans to developing countries, in order to finance their purchase and distribution of COVID-19 vaccines, tests, and treatments. Such a financing package should be provided in furtherance of a globally coordinated approach to ensure wide and fair access to COVID-19 vaccines, rather than of a profit-driven market model whereby developing countries pay high prices for vaccines with their grants and loans.
Developing countries have entered the pandemic with unprecedentedly high debt levels. While low-income countries are in a position to reduce their debt burden when the global economic environment is favourable and commodity prices are stable, the global economy is in a deep recession and faces risks of a further downward slide. As a result, there is fear of a widespread debt crisis in the world, with more sovereign and private defaults to come in the near future.
The so-called “supply and vaccine nationalism” will only worsen the situation. Low and middle income countries will have to devote more resources for obtaining the various products, leading to more debt and further reducing fiscal space for measures and policies for acute needs on health, food and social security, all crucial elements to address the situation of their population. With the credit crunch and worsening fiscal positions for developing countries, it would be even more difficult for them to obtain vaccine for their nations if the prices are high or the supply has been monopolized, or if shortages of essential medical goods and protective gear continue to increase, placing additional stress on the health care systems.
Availability, access and affordability at national level
States have an obligation to ensure that any COVID-19 vaccines and treatments are safe, available, accessible and affordable to all who need them. This is particularly relevant to people in vulnerable situations who are often neglected from health services, goods and facilities, including those living in poverty, women, indigenous peoples, people with disabilities, older persons, minority communities, internally displaced people, persons in overcrowded settings and in residential institutions, people in detention, homeless persons, migrants and refugees, people who use drugs, LGBT and gender diverse persons. Many of them may have lived experience of poverty and find themselves in situations where they are most likely to be exposed to the risk of contagion, yet the least likely to be protected from COVID-19 or supported by adequate and timely tests and health services.9 It is imperative that access to COVID-19 vaccines and treatment is provided to all without discrimination and prioritized for those who are most exposed and vulnerable to the risk of COVID-19.
To cope with limited fiscal space, there is a high risk that Governments in developing countries, instead of adopting human rights compliant policies, will resort once again to austerity measures, including cuts in social protection, food assistance or health supplies. This would further deepen poverty, discrimination and the inequality gap within countries. Deeper social impacts will also delay the economic recovery process.
The austerity measures implemented in the aftermath of the 2008 financial crisis have left public health care and social protection systems severely underfunded, increased precarious employment, and widened inequality between the rich and the poor. While a plethora of social protection measures has been adopted to deal with the socioeconomic consequences of the pandemic, they have largely proved to be ad hoc and inadequate, revealing a critical need to build comprehensive and sustainable social protection systems.10
Saving lives and the economy: a social function of businesses
Industry and private benefit cannot be prioritized over the rights to life and health of billions with so far reaching consequences. That does not mean that companies should not be adequately compensated for their work in case of success developing a safe and effective vaccine. It means that they should not remain solely in control of selling and distributing to the highest bidder, not the least. Pharmaceutical and other companies involved in this endeavour should join the collective and global efforts to effectively contain COVID-19.
In some cases, public funding has greatly contributed to the development of vaccines, directly and indirectly, as well as to researching and developing various products.11 While support from States to assist companies in developing vaccines and other supplies needed to fight the pandemic is important, it seems fair that in return, companies accept that they have a responsibility to support the right to health. Furthermore, States should ensure that businesses benefiting from State assistance respect human rights and are committed to transparency and accountability. The Working Group on Business and Human Rights has urged States to consider respect for human rights as an essential requirement when offering businesses pandemic-driven support.12 Similarly, it has reminded businesses of the need for the private sector to respect human rights and prevent adverse human rights impacts in their provision of goods and services during the COVID-19 pandemic, in line with the UN Guiding Principles on Business and Human Rights.13
The emerging intellectual property disputes over patents as well as the possibility of having oligopolistic manufacturers could also hinder the development and production of COVID-19 vaccines as well as the availability, accessibility and affordability of the vaccine at national and international levels. Pharmaceutical companies have responsibilities regarding the realization of the right to health, in particular in relation to access to medicines, including vaccines. In order to protect the right to health, States should use to the full the provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) regarding flexibilities to protect public health and provide access to medicines for all. This through, inter alia, granting compulsory licences as recognized in the Doha Declaration on the TRIPS Agreement and Public Health and following the a commitment made in the Sustainable Development Goals (SDG3)14 . Human rights mechanisms have provided extensive guidance on this issue for private businesses and States.15
Recommendations to States, business and other stakeholders
The race for a COVID-19 vaccine must be, above all, a race to prevent more deaths and to protect the human kind, without discrimination on any ground and without consideration for national origin. This race, which serves as a light of hope in dark social and economic times, should be anchored in the essentiality of international cooperation and assistance and in the conviction that sharing the benefits of scientific progress is a human right as central as the rights to health and to life. Access and availability of a vaccine cannot be left in the hands of traditional market forces, to be defined by rules of supply and demand. Market solutions alone will not efficiently contain this pandemic nor prioritize the protection of millions of people in situations of vulnerability.
We join our voices on the call by States, the United Nations, civil society organizations and academics, to prioritize access to vaccines and treatments for the people and to ensure scientific progress benefits all in line with international human rights principles and in consideration of their centrality as global public goods.16
We also support the call of the World Health Assembly to recognize “the role of extensive immunization against COVID-19 as a global public good for health in preventing, containing and stopping transmission in order to bring the pandemic to an end, once safe, quality, efficacious, effective, accessible and affordable vaccines are available”17 States should:
- Comply with their international obligations of ensuring access to medicines, including COVID-19 vaccines and treatment to all and of international assistance and cooperation. This by combatting the COVID-19 pandemic in a globally coordinated manner, including by joining the
COVAX Global Vaccines Facility and putting aside misplaced individual initiatives to monopolize vaccine or supplies.
- Ensure that important technologies, intellectual property data and know-how on COVID-19 vaccines are widely shared and developing countries are supported in scaling up development, manufacturing and distribution capacities to ensure equal access to such vaccines. Pledges and voluntary licenses - including through initiatives like
COVID-19 technology access pool – are not enough in view of the current situation. “Binding commitments to facilitate the open sharing and right to use technologies, know-how, data and global non-exclusive rights to use and produce COVID-19 medical products”18 should be put in place immediately.
- Pay particular attention on the objectives (article 7) and principles (article 8) of the TRIPS Agreement in light of the COVID-19 pandemic. In particular, States should refrain from the use of “national security” or any argument allowing for trade secrets related to the vaccine, treatment, testing and any other information needed to combat the disease.19
- Fully exercise the right to grant compulsory licences pursuant to the TRIPS Agreement and the Doha Declaration on the TRIPS Agreement and Public Health to ensure that patents and other intellectual property rights do not create obstacles to providing for access to vaccines to all – particularly those in vulnerable situations and living in poverty.20
- Give particular attention to ensuring that vaccines are accessible to frontline health-care workers and to join WHO global initiatives.
Pharmaceutical companies should:
- Discharge their responsibilities, including by exercising human rights due diligence to identify and address adverse impacts on the rights to life and health as set out in the Guiding Principles on Business and Human Rights,. In particular, they should refrain from causing or contributing to adverse impacts on the rights to life and health by invoking their intellectual property rights and prioritizing economic gains.
International financial institutions (IFIs), consistent with their human rights duties under international law, should:
- Ensure that any grants and loans that they provide to developing countries contribute to expanding their capacity to procure, manufacture and distribute safe, effective and affordable COVID-19 vaccines. To this end, IFIs’ country programs on COVID-19 vaccines should be aligned with a globally coordinated approach, such as the COVAX Global Vaccines Facility.
We finally recommend that:
- States participating at the 31st Special Session of the General Assembly in Response to the COVID-19 Pandemic take into consideration the present Statement and guiding elements to ensure universal access to COVID-19 vaccine for all in all countries through international cooperation and assistance.
* Tlaleng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; Olivier De Schutter, Special Rapporteur on extreme poverty and human rights; Anita Ramasastry (Chair), Dante Pesce (Vice-Chair), Surya Deva, Elżbieta Karska, and Githu Muigai, Working Group on the issue of human rights and transnational corporations and other business enterprises; Obiora C. Okafor, Independent Expert on human rights and international solidarity, and Saad Alfarargi, Special Rapporteur on the right to development
2. CESCR, general comment no. 25, on article 15.1.b), April 2020, para.82.
7. WTO, IP/C/W/669, 2 October 2020.
9. Report of the Special Rapporteur on extreme poverty and human rights: The parlous state of poverty eradication,
14. Sustainable Development Goal No. 3 “Ensure healthy lives and promote wellbeing for all at all ages”, Target 3.b. See also
15. For instance, the mandate of the Special Rapporteur on the right to health has extensively worked on the issue of access to medicines, intellectual property rights, including in reports
A/63/263 (Human Rights Guidelines for Pharmaceutical Companies),
A/HRC/17/43 (2011) and
17. 73rd World Health Assembly, COVID-19 response, 19 May 2020, WHA73.1, paragraph 6,
https://apps.who.int/gb/ebwha/pdf_files/WHA73/A73_R1-en.pdf and OP13of the Omnibus Resolution, Comprehensive and Coordinated Response to the COVID-19 Pandemic adopted at the 75th session with 169 votes in favour and 2 against.