Written by Juan Pablo Hernández Páez
The Treaty Examiner, vol. 2, issue 1
14 February 2021
During the year 2020, as the coronavirus disease 2019 (COVID-19) spread globally and health systems collapsed, the distant dream of a vaccine tantalized the world. The vaccine was perceived as the panacea that could put an end to the economic and humanitarian hardship that engulfed all countries. It is thus unsurprising that, once effective vaccines started to emerge and become distributed, States did everything in their power to obtain a large number of them in order to support their domestic inoculation programs and protect their populations. The result has been, however, that vaccines have started to be distributed inequitably. Rich and developed countries managed to secure billions of doses for their populations, sometimes enough to vaccinate their people several times over. Conversely, more than 80 countries, many of them developing States, are expected to enjoy widespread vaccination by early 2023. This disparity in the distribution of COVID-19 vaccines, resulting from “vaccine nationalism”, can have a devastating effect for the global right to health and the world’s ability to recover from the pandemic. This article argues that the inequitable distribution of vaccines violates international law, and that States are under an obligation to cooperate to implement the right to health in those countries that are most affected by COVID-19.
The global right to health
The general rule is that States are only obligated to protect the human rights of their own populations and of those persons that are under their jurisdiction. This is reflected in Article 2(1) of the 1966 International Covenant on Civil and Political Rights (ICCPR), which provides as follows:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In interpreting this provision, the International Court of Justice (ICJ) stated, in its 2004 Advisory Opinion concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (¶¶109, 110), that while human rights protection is primarily territorial, States may be under extraterritorial obligations in exceptional cases. This rule of extraterritorial protection has been reiterated by human rights tribunals and specialized committees. The Human Rights Committee (HRC) has found that States have an obligation to ensure that their agents acting abroad respect human rights (López Burgos v. Uruguay, p. 29; Lilian Celiberti de Casariego v. Uruguay, p. 41). A similar rule was established by the European Court of Human Rights (e.g., Bankovic v. Belgium, p. 94). The Inter-American Court of Human Rights has been far more expansive, recognizing three bases for extraterritorial human rights protection (see its Advisory Opinion concerning the Environment and Human Rights: EN and SP):
- Whenever the State exercises effective control over territory (as is the case in the Palestinian occupied territory),
- Whenever the State exercises authority and control over persons (as is the case when State agents act abroad), and
- Whenever an act, taken within the territory of the State, has transboundary effects (as is the case of transboundary environmental harm).
This paradigm is sensible since human rights guarantees are intended to be practical and effective (Soering v. UK, ¶87; Loizidou v. Turkey (preliminary objections), ¶72). Imposing a universal and unlimited obligation to protect human rights would not only deter States from acceding to human rights treaties, but it would also undermine the credibility of the human rights system by creating a circumstance in which States will be unable to comply with their obligations.
However, when it comes to economic, social and cultural rights, this paradigm becomes blurred. These rights entail, for States, a positive and performative obligation to ensure their progressive protection, and not merely a “negative” obligation not to interfere in their exercise. As a result, States obligations concerning the protection of economic, social and cultural rights are not subject to the same territorial obligation that civil and political rights. This is reflected in Article 2(1) of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which states:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.
From a parallel comparison with Article 2(1) of the ICCPR, Article 2(1) of the ICESCR appears to expand the obligations of States concerning human rights protection in the economic, social and cultural context. This expansion of the States’ obligation, however, is better regarded as an additional obligation of cooperation and progressive global protection. This progressive global protection, to be achieved through “international assistance and co-operation” was addressed by the Committee on Economic, Social and Cultural Rights (CESCR) in General Comment No. 14 in the context of the right to health under Article 12 of the ICESCR (¶39):
To comply with their international obligations in relation to article 12, States parties have to respect the enjoyment of the right to health in other countries, and to prevent third parties from violating the right in other countries, if they are able to influence these third parties by way of legal or political means, in accordance with the Charter of the United Nations and applicable international law. Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible, and provide the necessary aid when required. States parties should ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments. In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to health.
This paragraph evidences that Article 2(1) of the ICESCR does not obligate States to protect the right to health in other territories. Rather, Articles 12 and 2(1) of the ICESCR appear to impose two corresponding obligations from a territorial perspective:
- Within their territory and jurisdiction, State parties are obligated to protect the right to health, including by ensuring the availability, accessibility, acceptability and quality of health assistance by the State. In other words, within the general paradigm of human rights protection, Article 12 of the ICESCR imposes a positive obligation to protect the right to health.
- Outside their territory and jurisdiction, State parties are obligated not to allow their own activities to frustrate the enjoyment of the right to health elsewhere. Thus, when read in context of Article 2(1) of the ICESCR, the right to health imposes on States a negative obligation not to impede the attainment of the right to health in other States.
This second obligation, as can be derived from Article 2(1) of the ICESCR, can be compared to the prohibition on transboundary harm under international law. It is to be noted that this discipline, as evidenced by Article 1 of the International Law Commission (ILC) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, applies to circumstances where an act, which is not prohibited by international law, “involve[s] a risk of causing significant transboundary harm through their physical consequences” (of course, the norms concerning transboundary harm do not apply to State policies in the socio-economic context, as is noted by the ILC’s commentary, Art. 1, ¶16; the comparison is for academic purposes).
In the context of the right to health, acts to protect one’s own population are not only legal but endorsed by international law; however, States are bound, by Article 2(1), to take into account the consequences of their fulfilment of that obligation, so that those acts do not frustrate the enjoyment of the right to health in other States. This applies a fortiori between developing and developed States. As was stated by the CESCR in General Comment No. 14 (¶38), the performance of Article 12 of the ICESCR needs to be informed by the 1978 Alma-Ata Declaration, which provides as follows in relevant part:
The existing gross inequality in the health status of the people particularly between developed and developing countries as well as within countries is politically, socially and economically unacceptable and is, therefore, of common concern to all countries.
The right to health, thus, has a global scope that needs to account for the disparities between developed and developing States. This, too, has to inform Article 2(1) of the ICESCR and its implementation. This is especially true when it comes to global pandemics, where economic recovery cannot be achieved at the expense of developing States.
Vaccine nationalism: a potential breach of the ICESCR?
The obligation under Article 2(1) of the ICESCR not to frustrate the enjoyment of the right to health in other States is especially triggered by the race for vaccines. As is noted by the CESCR, States must not allow their own actions, or those of third parties, to impede the enjoyment of the highest attainable standard of health in other States. This obligation potentially binds those States that can, through their actions or omissions, influence the commercial conduct of vaccine-developing companies like Moderna or Pfizer. However, what action is required of a State under Article 2(1) of the ICESCR? A State should not be required to handicap its own pandemic preparedness or health protection with the aim of protecting the populations of other States, as this would contradict the text of Article 12 of the ICESCR.
The negative obligation imposed by Article 2(1) of the ICESCR should, however, prevent States from taking steps that could “nullify or impair” the enjoyment of the right to health by the populations of other States. The clearest violation of this duty in this connection is found in the way the purchase of COVID-19 vaccines was arranged. Particularly, it is argued that States contracting with vaccine developing corporations, like Pfizer or Moderna, are under an obligation not to enter into international contracts that could overburden their vaccine production capacity. Recently, for instance, a redacted version of the contract between AstraZeneca and the European Commission, signed on 27 August 2020, for the supply of COVID-19 vaccines, was published by the European Union. This contract attracted global attention due to its size: at a price of about one billion dollars, there is discussion (especially in the context of the 1980 Vienna Convention on Contracts for the International Sale of Goods) as to whether the AstraZeneca-EU supply contract is the largest contract for the international sale of goods ever to have been concluded in history. While it is not submitted that entering into this contract, particularly, violated the EU’s obligations under international human rights law, this enormous contract stands in troubling contrast with the statistics of expected rate of widespread vaccination in developing countries. It is through acts like this that ICESCR State parties can attract responsibility for a breach of their Article 2(1) duties if they refuse to cooperate with developing States in other ways in their acquisition of vaccines.
Conclusions: why should we all care?
It is undeniable that States are obligated to protect the health of their own countries and nationals. The purpose of this article, of course, is not to deny that duty. Indeed, the present disparity in vaccine distribution appears to be caused by the attempt by States with greater economic power to implement their primary obligation to protect the right to health of their own populations. In that sense, it may appear simpler to arrive at the conclusion that, when it comes to a global race to inoculation, it is the law of the jungle that reigns. Disadvantaged States that were not fast enough to acquire the vaccines should be required to wait.
Yet, while this reasoning may be sensible when it comes to an ordinary commodities market, to leave the protection of health to questions of economic or even political expediency appears misplaced. As was stated by the ICJ in its very first case (p. 22), the obligation not to allow one’s territory to cause harm to other States reflects elementary considerations of humanity. This principle appears even more exacting when it comes to global pandemics. As the CESCR recognized in General Comment No. 25 (2020) in the context of the right to scientific development (¶¶82, 84):
Pandemics are a crucial example of the need for scientific international cooperation to face transnational threats. Viruses and other pathogens do not respect borders. If adequate measures are not taken, a local epidemic can very quickly become a pandemic with devastating consequences. (…) Combating pandemics effectively requires stronger commitment from States to scientific international cooperation, as national solutions are insufficient. Enhanced international cooperation could increase the preparedness of States and of international organizations to face future pandemics, for instance by sharing scientific information about potential pathogens. (…) 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. After the pandemic is over, scientific research should be promoted to learn lessons and increase preparedness for possible pandemics in the future.
(…)
States parties also have an extraterritorial 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. States parties should provide remedies, including judicial remedies, for victims of these companies.
The present disparity, unfortunately, can have devastating economic consequences. The inability of most countries to receive proper inoculation for the COVID-19 pandemic does nothing more than to prolong the process of economic recovery for all States. Vaccine nationalism also has the effect of reducing the availability of vaccines and therefore increasing their price, making it more difficult for disadvantaged countries to acquire them. Global pandemics can only be tackled through globally concerted action by all States; this is confirmed by the outbreak of new, more contagious strains of COVID-19 that make the task of new vaccines all the more difficult. As has been stated by the Office of the High Commissioner for Human Rights:
…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.
What can States do to mitigate the effects of vaccine nationalism? The first step, I believe, is to cooperate with the COVAX facility, as the United States are now vowing to do. Cooperation can also include waiving certain IP protections for developing countries to develop their own vaccines, as has been advocated in the WTO context. In the end, what is required of States under Article 2(1) of the ICESCR is to cooperate internationally to eradicate the COVID-19 pandemic. It is to be noted that this obligation of cooperation and negotiation not only exists in the human rights context: it is imposed also by Article 56 of the Charter of the United Nations, which therefore prevails over any conflicting international obligation (Article 103 of the Charter). The form of that cooperation or negotiation, however, depends on the involved States or international organizations. What is not to be denied is that, if individual interest continues to be enforced before globally concerted action, the present economic hardship will prolong itself indefinitely.
PIE DE IMPRENTA: Juan Pablo Hernández (editor-in-chief), Guatemala, 14 February 2021.
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