Katrina Perehudoff and Jennifer Sellin
How do we guarantee access to COVID-19 vaccines and therapies, and secure health-related human rights for all? We’ve heard a string of promises in the race for new vaccines and therapies. European governments, Australia, Canada, Japan, Saudi Arabia, and others have pledged US$10.5 billion to develop vaccines and health products against COVID-19. Some world leaders promised that these products will be ‘global public goods’. How this will be realized is not (yet) clear.
Meanwhile, Johnson & Johnson promised a price tag of US$10 per dose for its COVID-19 vaccine currently being developed. This company is among the many that have already received substantial public funds for research and development. Ten dollars per dose may seem affordable in high income countries, but it is not for many in low- and middle-income countries, which raises questions as to who will eventually have access to COVID-19 medical products and at what price. Now that $US10.5 billion is on the table, it is important that human rights law guides government and company action to navigate our way out of this crisis.
Under international law the 170 states that have ratified the International Covenant on Economic, Social and Cultural Rights are committed to taking steps to guarantee affordable essential medicines for all. They are also obligated to ensure access to the benefits of scientific progress and its applications, such as newly developed vaccines, diagnostics and therapeutics, particularly when they are instrumental for enjoying other socio-economic rights such as health. This responsibility is shared with the international community and private actors such as the pharmaceutical industry, as outlined in the UN Guiding Principles on Business and Human Rights and the Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines.
Pandemics epitomize the need for scientific and technical international assistance and cooperation in line with international human rights law. The UN Committee on Economic, Social and Cultural Rights in its April 2020 statement on the COVID-19 highlights that “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.”
Unfortunately, even in the midst of a pandemic, action to fulfil such a commitment by both public and private actors is slow. For example, on May 13, 2020, pharmaceutical company Gilead, entered into an agreement to make generic versions of remdesivir accessible in 127 low-income countries. This experimental COVID-19 drug is currently patented in many countries. This move may seem positive were it not for the exclusion of 70 countries, including most of Europe and South America (currently the new epicentre of the pandemic). What price can patients expect in these countries, which include those severely affected such as Italy, Ecuador and Brazil?
The problem of (excessively) high prices for medicines is not unique to COVID-19. In the early years of HIV/AIDS, patented antiretrovirals were prohibitively expensive, costing millions of people their lives. In its recent interpretation of the right to benefit from scientific progress, the UN Committee on Economic, Social and Cultural Rights reiterates its decades-long message: states should ensure that intellectual property rights do not lead to limited access to essential medicines for large segments of the population.
The current patent system rewards developers of a new product or process with a market monopoly, typically for 20 years. The monopoly stops the development of generic equivalents which effectively keeps the price of the drug high, and often unaffordable in the global south. Although the 2001 Doha Declaration on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Public Health asserted that TRIPS can and should be interpreted and implemented in a manner that allows World Trade Organization members to protect access to affordable medicines, there are still too many examples of (excessively) high medicine prices resulting in no or inadequate access for patients living in poverty.
However, an encouraging and important step towards equitable access was taken on May 29, 2020 by the World Health Organization when it launched the COVID-19 Technology Access Pool (C-TAP) and the Solidarity Call to Action, an initiative of Costa Rica with the support of 36 other countries. A ‘pool’ is an effective and efficient tool to bring new technologies together to be used at a fair price and be subject to payment of ‘royalties’ to the developers. Such systems have been successful in aviation and the pharmaceutical industry.
The existing Medicines Patent Pool (MPP) shows that such a pool is a realistic and efficient option that is compatible with international human rights and trade law. By pooling patents, the MPP has already delivered more than 9.59 billion doses of HIV/AIDS, hepatitis C, and tuberculosis generic drugs to patients in low- and middle-income countries, at a saving of US$1.23 billion. This was achieved through the collaboration of 10 pharmaceutical companies and 22 generic manufacturers and product developers.
Ensuring accessible and affordable COVID-19 vaccines and therapies for all is a human rights duty that requires political commitment and international cooperation. States should support, implement and be accountable to the C-TAP and the Solidarity Call to Action. Doing so requires States to insist that those receiving public funding to develop COVID-19 related products deposit all intellectual property, test data, processes, and safety information into the C-TAP. No government can afford to remain on the side-lines: action is needed now to ensure future COVID-19 medical products are available, affordable, and of assured-quality as part of the right to health and the right to benefit from scientific progress for all.
Katrina Perehudoff is a post doctoral research fellow at the Dalla Lana School of Public Health, University of Toronto, and a post doctoral researcher at the International Centre for Reproductive Health, Department of Public Health & Primary Care, Ghent University in Belgium. She is a board member of the Pharmaceutical Accountability Foundation and is affiliated with Medicines Law & Policy. Email: katrina.perehudoff @ gmail.com Twitter: @KatPerehudoff
Jennifer Sellin is an assistant professor at the Faculty of Law, Maastricht University, and a member of the Maastricht Centre for Human Rights in the Netherlands. She is a member of the advisory council of the Pharmaceutical Accountability Foundation. Email: email@example.com
Katrina and Jennifer discussed the need for a human rights approach to the research and development of COVID-19 medical products at the Dalla Lana School of Public Health webinar ‘Exploring the Human Rights Dimensions of COVID-19’ on June 4, 2020.