On the Side of Humanity? Human Rights a Missing Link in COVID-19 Vaccine Strategies

Heartbreaking scenes in India, of people facing serious illness and death during a record-breaking surge in COVID-19 infections now spreading to other countries in South Asia, are a painful reality check on how much work is still ahead to stop the pandemic. They’ve also highlighted profound gaps in access to basic health care and to COVID-19 vaccines in countries around the world.

Working with business, and the pharmaceutical industry specifically, in producing and distributing COVID-19 vaccines that are proving to be so effective, is undoubtedly a critical component of strategies to halt the pandemic. The scientific, logistics and management achievements that made vaccines a reality in such a short time are laudable. But questions remain, given the scale of the emergency, over what more can be done by business leaders at the forefront of the response, alongside counterparts in government and public health, to bring the pandemic under control.

Those watching developments with an eye to issues of equity and realising the right to health are asking whether international human rights obligations and guidance are sufficiently part of decision making, joint action and accountability for results. We urgently need strategies that ensure access to health care and vaccinations on a global scale. State human rights duties and business responsibilities must be a bigger part of the global COVID-19 response.

Human Rights Obligations and International Cooperation in Pandemic Responses

Making global access to vaccines possible on a much faster time scale will require unprecedented forms of international cooperation. In IHRB’s April 2020 report on COVID-19, we highlighted the importance of affordable and equitable distribution of vaccines.

Over a year later, despite calls to increase contributions to the COVAX facility intended to accelerate development and access to COVID-19 vaccines, governments have been slow in coordinating and sharing resources. As the WHO Director-General put it in April 2021, at a special session of the UN Economic and Social Council, “We cannot defeat this virus one country at a time. We can only do it with a coordinated global effort, based on the principles of solidarity, equity and sharing.”

In 2020, the UN Committee on Economic, Social and Cultural Rights (CESCR), which monitors states’ compliance with obligations under the International Covenant, issued a general comment concerning science, which includes guidance on state duties to cooperate to fulfill these fundamental rights. In the context of pandemics, the Committee stressed that, “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 diseases.” In the same section, it reminds governments of their obligation “to regulate and monitor the conduct of multinational companies over which they can exercise control, in order for the companies to exercise due diligence to respect the right to participate in and to enjoy the benefits of scientific progress and its applications, also when acting abroad.”

The need to widen and hasten distribution of vaccines is urgent. By current estimates, some countries won’t have vaccinated the majority of their populations before 2023.

This broad guidance is helpful, but obviously doesn’t ensure accountability or provide precise directions for governments or businesses. It nevertheless should be part of responses to situations like India’s. Experts have pointed to the multiple failures that caused the current COVID-19 emergency in India. A combination of “government negligence, corporate profiteering, opaque contracting, and the inequities of the global pharma market” are widely blamed for the crisis. Those responsible must be held accountable for the decisions that have resulted in human loss on such a scale. But India and other countries clearly need support in addressing the current crisis.

Others point to the intellectual property system and protections for research investments as a central roadblock to wider vaccine access. The need to widen and hasten distribution of vaccines is urgent. By current estimates, some countries won’t have vaccinated the majority of their populations before 2023. The pace of vaccinations is unconscionably slow.

The announcement by US trade representative Katherine Tai that the Biden administration would support a limited waiver for intellectual property protections for COVID-19 vaccines may be a sign that this issue will finally be addressed in a meaningful way. Although advocates warn that the US position only supports a waiver on patents for vaccines, and not the broader range of other urgently needed products such as tests and treatments, this announcement is a step forward in determining what should be done now, with past examples such as HIV/AIDs in mind.

It must be recalled that all businesses, including pharmaceutical companies and others involved in addressing COVID-19, have a responsibility to respect human rights in line with the UN Guiding Principles on Business and Human Rights.

The US position appears to have met with strong resistance from some, including the German government which stated that “the limiting factor in the manufacture of vaccines is production capacity and the high quality standards, not the patents.” The weeks ahead will likely see extensive debate in the World Trade Organization and elsewhere on how to address these competing viewpoints. Here again, such discussions should be informed by international human rights obligations and expertise. For example, the reports by the UN Special Rapporteur on Cultural Rights on intellectual property policies and human rights obligations relating to science and culture should be part of that process.

Human Rights and Business Responsibilities in Times of Crisis

Pharmaceutical company leaders and industry association representatives in particular will need to play constructive and responsible roles in all discussions relating to COVID-19 vaccines. But how should their human rights responsibilities in broad terms be understood in meeting this moment?

It must be recalled that all businesses, including pharmaceutical companies and others involved in addressing COVID-19, have a responsibility to respect human rights in line with the UN Guiding Principles on Business and Human Rights (UNGPs). That requires demonstrating they have taken all reasonable measures to prevent and mitigate adverse impacts associated with COVID-19 responses.

In terms of vaccines, such due diligence should include decisions on issues relating to pricing and distribution. Companies clearly face numerous challenges in scaling up COVID-19 vaccine access such as difficulties in technology transfers and the intricacies of developing manufacturing systems, including access to key raw materials. Businesses will need to be open to involvement in innovative approaches, including more space for cross-industry collaboration and participation of experts and civil society organisations to address vaccine bottlenecks.

Finally, where should efforts by the business and human rights community be focused now in engaging the pharmaceutical industry and related companies on COVID-19 and their responsibilities?

We have to be on the side of humanity and lifesaving in a crisis.

One useful step would be to revisit the efforts that Paul Hunt, former UN Special Rapporteur on the Right to Health, undertook to develop the 2008 Human Rights Guidelines for Pharmaceutical Companies in Relation to Access to Medicines. He noted at the time that: “pharmaceutical companies operate in complex market and social settings that give rise to a range of responsibilities to various stakeholders. Of course, companies have a responsibility to enhance shareholder value. This responsibility has to be seen in the context of other social, developmental and human rights responsibilities, especially the pharmaceutical sector’s central societal mission to develop high-quality medicines that are accessible to those in need.”

Paul Hunt’s important effort was based on nearly three years of dialogue and engagement with companies and human rights experts, all before the UNGPs were finalised. Much has happened since, and it would be an encouraging sign of leadership if pharmaceutical company leaders would be willing to reflect again with civll society, government and health experts on what has been learned over this period and where human rights responsibilities, in line with the UNGPs and other relevant standards, could be further clarified today. Such discussions would benefit from the involvement of initiatives like the Access to Medicines Index, which has recently examined how major companies are responding to COVID-19 on issues such as sharing IP, ensuring equitable access to COVID-19 treatments and vaccines, and building resilient supply chains.

In the end, the overriding aim for companies and all other actors must be to address the ongoing COVID-19 humanitarian crisis and reach those most in need, wherever they may be. As Mary Robinson, IHRB’s founding chair and patron said recently, “We have to be on the side of humanity and lifesaving in a crisis.”