{"id":12936,"date":"2021-03-26T09:00:30","date_gmt":"2021-03-26T08:00:30","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=12936"},"modified":"2021-03-26T09:55:08","modified_gmt":"2021-03-26T08:55:08","slug":"time-to-counter-vaccine-nationalism","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/time-to-counter-vaccine-nationalism\/","title":{"rendered":"Time to Counter \u201cVaccine Nationalism\u201d?"},"content":{"rendered":"

To this date, states with access to vaccines against the new coronavirus are focusing exclusively on inoculating people under their jurisdiction. This process has been accurately described as \u201c<\/u>v<\/u>accine nationalism\u201d<\/u><\/a>. So far, a legal basis for an explicit human right to\u00a0the distribution of vaccines is not codified in any treaty. However, the right to health and the right to enjoy the benefits of scientific progress and its applications are well established in international law. As such,\u00a0they play a key role in the context of developing \u201cnew\u201d human rights \u2013 particularly through their interconnectedness. In the present article, I will explore to what extent these two rights can work towards establishing a \u201cnew\u201d human right to the distribution of vaccines.<\/p>\n

Access to V<\/strong>accines <\/strong>as <\/strong>an <\/strong>I<\/strong>ntegral <\/strong>P<\/strong>art of the R<\/strong>ight to <\/strong>H<\/strong>ealth<\/strong>?<\/strong><\/p>\n

The right to health is codified, inter alia<\/em>,\u00a0in Art.\u00a012\u00a0of the International Covenant on Economic, Social and Cultural Rights<\/u><\/a>\u00a0(ICESCR). Among other obligations, this provision requires the ICESCR\u2019s\u00a017<\/u>1<\/u>\u00a0<\/u>state parties<\/u><\/a>\u00a0to respect<\/u>, <\/u>protect<\/u> and fulfil<\/u><\/a> the right to health by implementing health policies. The \u201cright to health\u201d is a misleading expression, since Art.\u00a012\u00a0ICESCR does not include\u00a0a right to \u201cbe healthy\u201d. Rather, it obliges\u00a0state parties to take all necessary steps towards guaranteeing the \u201cenjoyment of the highest attainable standard of physical and mental health\u201d.<\/p>\n

Art.\u00a012\u00a0ICESCR does not expressly mention the distribution of vaccines or the distribution and access of medical resources. Yet, it does refer to \u201cthe prevention, treatment and control of epidemic\u00a0[\u2026]\u00a0diseases\u201d\u00a0(Art.\u00a012(2)\u00a0lit.\u00a0c\u00a0ICESCR). In order to better understand its precise meaning, the General Comments\u00a0(GCs) and statements of the Committee on Economic, Social and Cultural Rights\u00a0(Committee) can be used as a means of interpretation. While not legally binding, they provide important guidance as authoritative interpretations of the ICESCR. In GC<\/u>\u00a0<\/u>No.<\/u>\u00a0<\/u>14<\/u><\/a>\u00a0on the right to health, the Committee recognised the need to include new determinants of health in the interpretation of Art.\u00a012\u00a0ICESCR, such as the distribution of resources\u00a0and formerly unknown diseases\u00a0(para.\u00a010).\u00a0In 2020,\u00a0GC\u00a0No.\u00a025<\/u><\/a> provided further guidance by linking the right to health with the right to enjoy the benefits of scientific progress\u00a0(Art.\u00a015(1)\u00a0lit.\u00a0b\u00a0ICESCR). According to GC\u00a0No.\u00a025 para.\u00a067, this right incorporates the duty of states to establish new medical applications. In the same paragraph, the Committee also explicitly stated that the availability and distribution of vaccines\u00a0as essential medical products to combat diseases is covered by its interpretation of the right to health.\u00a0Recently, this interpretation was reaffirmed by the Committee in its \u201cStatement on universal affordable vaccination for COVID-19, international cooperation and intellectual property<\/u><\/a>\u201d\u00a0(Statement) on\u00a012th\u00a0March\u00a02021.<\/p>\n

Counterbalanc<\/strong>ing I<\/strong>nternational C<\/strong>ooperation <\/strong>and <\/strong>D<\/strong>omestic<\/strong> P<\/strong>reference<\/strong><\/p>\n

Since this new reading by the Committee covers the distribution of vaccines, one might ask whether states are only obliged to fulfil this right towards people under their jurisdiction, or vis-\u00e0-vis<\/em> other state parties of the ICESCR. In general,\u00a0there is no jurisdiction clause which limits the obligations of the ICESCR to people under a state\u2019s jurisdiction. According to the doctrinal consensus<\/u><\/a>\u00a0and the Committee, the\u00a0states parties\u2019 \u201cobligation to fulfil\u201d the right to health relates firstly to national measures.\u00a0Examples of such national measures include the implementation of national health policies, programmes to fight infectious diseases, and the just distribution of medical resources within the respective state\u00a0(GC\u00a0No.\u00a014\u00a0para.\u00a036). This resembles with Art.\u00a015(1)\u00a0lit.\u00a0b\u00a0ICESCR, since its core obligation relates to national frameworks and action plans\u00a0(GC\u00a0No.\u00a025\u00a0para.\u00a052).\u00a0Consequently, the act of prioritising people under its jurisdiction is not only\u00a0common in law but corresponds to well-established the reading of international human rights obligations (see e.g.\u00a0here<\/u><\/a> and here<\/u><\/a>).<\/p>\n

At the same time, states must also consider their obligations towards the international community. Indeed, the right to health and the right to enjoy the benefits of scientific progress both comprise an obligation of international assistance and cooperation. International cooperation is an obligation that can be derived from various legal sources, such as Art.\u00a015(4) and Art.\u00a02(1)\u00a0ICESCR as well as\u00a0Art.\u00a01(3) of the UN Charter<\/u><\/a>\u00a0(UNCh). The duty to cooperate does not only refer to the action between states;\u00a0it also obliges them to cooperate with organs of the UN. Cooperation in the field of health is especially highlighted by Art.\u00a056 and Art.\u00a055(1)\u00a0lit.\u00a0b\u00a0UNCh and the non-binding\u00a0Alma-Ata Declaration<\/u><\/a> on primary health care of\u00a01978. The latter aims to even out the large differences between the overall\u00a0health status<\/u><\/a>\u00a0in the Global North and South by urging states to cooperate.\u00a0However, it can be criticised of\u00a0being overly broad and infeasible. Nevertheless, as stated by the Committee, international cooperation is especially needed because of the existing inequality<\/u><\/a> between states\u00a0(GC\u00a0No.\u00a025 para.\u00a079, Statement\u00a0para.\u00a02).\u00a0The Committee also highlighted the special cooperation duty during a pandemic between states and towards the WHO<\/u><\/a>, referring specifically to the need to\u00a0share\u00a0knowledge about vaccines\u00a0(GC\u00a0No.\u00a025\u00a0para.\u00a082).\u00a0According to the legally non-binding Maastricht Principles on Extraterritorial Obligations<\/u><\/a> of\u00a02011, which are principles concerning the economic, social and cultural human rights, the states\u2019 duty to cooperate also covers technical and financial assistance\u00a0(para.\u00a033) aimed at realising human rights universally\u00a0(para.\u00a08). Such a broad obligation remains highly controversial. Nonetheless, one could consider applying the no-harm principle\u00a0(discussed here<\/u><\/a>) in this context, prohibiting states to harm one another by stock-piling vaccines. Accordingly, a violation of the no-harm principle by a state would already occur if the number of vaccines exceeded the amount needed for protecting its population.<\/p>\n

GC\u00a0No.\u00a014 para.\u00a039 mentions three prerequisites for a state\u2019s obligation to facilitate access, hence distribute resources to other states: The help must be necessary<\/strong>, the provision\u00a0of resources must be possible<\/strong>,<\/strong> and the resources concerned\u00a0must be available<\/strong>. Without doubt, the distribution of vaccines is necessary to those states that are not able to establish a vaccination regime. However, both the provision and the availability are questionable during the COVID-19\u00a0pandemic. The provision of vaccines requires an effective medical infrastructure such as adequate refrigeration facilities. Further, their availability\u00a0is an obstacle too, since to this date, there is a severe scarcity of vaccines.\u00a0One could argue that the two conditions\u00a0(possibility and availability) have not been met as required by the Committee, which itself envisages problems in this regard\u00a0(Statement paras. 1, 10). But does that mean that no such obligation applies at all?<\/p>\n

According to GC\u00a0No.\u00a025 para.\u00a070, states are obliged to\u00a0make their best scientific progress accessible to everyone to enjoy the highest realisable standard of health. To this end, states must use the maximum of their\u00a0available resources\u00a0(Art.\u00a02(1)\u00a0ICESCR). This primarily addresses the Global North due to its economically advanced position. According to the Committee, they have a special responsibility to help during a health crisis even if the prerequisites mentioned above are not fulfilled. The Committee even argues that states would otherwise violate their extraterritorial obligations\u00a0(Statement\u00a0para.\u00a04). If the provision of vaccines towards states in the Global South is not feasible, financial support to individual states will have\u00a0considerable effect\u00a0(GC\u00a0No.\u00a025 para.\u00a067, GC\u00a0No.\u00a014 para.\u00a040, Statement\u00a0para.\u00a06). It could either be directed towards individual states or initiatives such as \u201cCOVID-19 Vaccines Global Access<\/u><\/a>\u201d\u00a0(COVAX). Another way to make vaccines more available for all is by\u00a0sharing their \u201crecipe\u201c<\/u><\/a>. However, this raises additional questions concerning intellectual property rights in the field of health\u00a0(discussed in Statement\u00a0paras.\u00a07-13\u00a0and\u00a0here<\/u><\/a>). The Committee calls for a supportive function of intellectual property rights in the context of the access to medical resources, especially\u00a0towards states of the Global South\u00a0(GC\u00a0No.\u00a025 paras.\u00a069,\u00a083). Even further, it argues that states must prevent intellectual property rights, as a \u201csocial product\u201d, from being detrimental to economic, social and cultural human rights\u00a0(Statement\u00a0para.\u00a07).\u00a0In total, there are many ideas<\/u><\/a>\u00a0on how states could address such a distribution.<\/p>\n

The Emerging Human Right to the Distribution of Vaccines<\/strong><\/p>\n

The distribution of vaccines\u00a0is\u00a0crucial to fight the coronavirus and its mutations. So far, states have refused to accept a positive extraterritorial obligation in the context of the right to health and the right to enjoy the benefits of scientific progress and its applications.\u00a0While it is lawful and reasonable to concentrate on the vaccination of people under a state\u2019s jurisdiction first, the international community must face the reality that the COVID-19\u00a0pandemic can only be overcome if the majority of the world\u2019s population<\/u><\/a> has been vaccinated. If states want to prevent the global spread of the coronavirus and in particular\u00a0the development of its mutations, the new and combined reading of Art.\u00a012(2)\u00a0lit.\u00a0c\u00a0and Art.\u00a015(1)\u00a0lit.\u00a0b\u00a0ICESCR by the Committee can guide states in light of the prerequisites discussed above: necessity, possibility, and availability. Tackling the COVID-19\u00a0pandemic definitely demands the best efforts of all states\u00a0\u2013\u00a0especially of the Global North. The aim must be to counteract the widening inequality between states, particularly in light of the obligation to cooperate. While there is no explicit legal basis for a human right to the distribution of vaccines quite yet,\u00a0the COVID-19\u00a0pandemic could well serve as a catalyst for defining the emerging human right to the distribution of vaccines.<\/p>\n","protected":false},"excerpt":{"rendered":"

To this date, states with access to vaccines against the new coronavirus are focusing exclusively on inoculating people under their jurisdiction. This process has been accurately described as \u201cvaccine nationalism\u201d. So far, a legal basis for an explicit human right to\u00a0the distribution of vaccines is not codified in any treaty. However, the right to health […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6731],"article-categories":[3572],"doi":[],"class_list":["post-12936","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-claire-marie-richter","article-categories-symposium"],"acf":{"subline":"International Obligations of States in the Context of the COVID-19\u00a0Pandemic"},"meta_box":{"doi":"10.17176\/20210326-095245-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/12936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=12936"}],"version-history":[{"count":1,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/12936\/revisions"}],"predecessor-version":[{"id":12938,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/12936\/revisions\/12938"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=12936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=12936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=12936"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=12936"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=12936"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=12936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}