Law Faculty Research Seminars: Equal access to vaccines: the limits of international human rights law

 

More than 112 million people have been diagnosed with COVID-19 and nearly 2.5 million have died as a result of the infection.  Given the failure of stringent measures to eliminate the virus save in a handful of countries, hopes have turned to a safe and effective global vaccination programme to halt the spread of the virus, which will enable the lifting of the stringent measures aimed at repressing it. Nearly 200 vaccines are in development with at least 54 being tested on human subjects and a handful having been registered for use in more than one jurisdiction.  More than 216 million vaccination doses have been administered so far, by far the majority in the developed world. It is probable that until 2023 or 2024, there will be insufficient stocks of vaccines that have been registered as safe and effective to meet global demand.

This paper considers whether international human rights law can make any contribution to ensuring equal access to vaccines.  It assesses, in particular, the International Covenant on Economic, Social and Cultural Rights (the Article 12 right to the enjoyment of the highest attainable standard of physical and mental health, the Article 15 right of everyone to enjoy the benefits of scientific progress and its applications and Article 2 which provides that states parties will “through international assistance and co-operation seek to achieve the progressive realisation of rights in the charter);  the United Nations Guiding Principles on Business and Human Rights adopted by the UN in 2011 and finally, the interrelationship between international human rights law international law protecting intellectual property, in particular the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS), and the system of compulsory licensing, as amended by the Doha Agreement.

It will be argued that although there are aspects international human rights law that may ameliorate the risk of vaccine nationalism, they are largely exhortative provisions and in the face of the strong regulatory framework of TRIPS under the WHO, not likely to provide a secure basis to promote equal access to vaccines.  Finally, the paper will consider the design and implementation of the COVAX initiative and consider whether it might provide some guidance as to how international law mechanisms may be developed to promote equal access to vaccines.