The Human Right to Vaccines: Preventing Discrimination Against the Unvaccinated

A. Kayum Ahmed

As the roll-out of COVID-19 vaccines gains momentum, a dystopian society of the “unvaccinated”—a class of people denied affordable and equitable access to effective COVID-19 vaccines—could likely emerge. This new class of people includes prisoners, Palestinians, and those affected by armed conflict. And because future supplies of COVID-19 vaccines have already been purchased by wealthy countries, the unvaccinated class will include a large part of the Global South whose majority populations will only be vaccinated years after Americans and Europeans.

Human rights could serve as an important tactic to demand the equitable distribution of vaccines at the global level. In a statement by UN human rights experts calling for universal and affordable access to COVID-19 vaccines, they invoke the right to the highest attainable standard of health in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The emancipatory nature of universal human rights frameworks generally, and the right to health reflected in Article 12 specifically, and in General Comment 14, are legal underpinnings to promote equitable access to vaccines.

Human rights as tactics denotes the range of legal, advocacy, and policy tools available within human rights frameworks to respect, protect and fulfil the “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health…” contained in the ICESCR.

However, human rights discourses can also be appropriated by state actors to reinforce sovereign power. Human rights as sovereignty denotes how states employ human rights language to construct a self-serving narrative that entrenches power or legitimizes behavior. The appropriation of human rights discourses is enabled by the formulation of the right to health as progressively realizable over time, within available resources. As a result, the right to health provides a level of deference to the state to decide who should receive access to health care and at which point. While the state has a duty to realize the right to health, it is also the primary violator of human rights. Economic and social rights are particularly vulnerable to political manipulation because of the principle of progressive realization.

This tension between human rights as tactics and human rights as sovereignty poses important challenges for advocates seeking to advance equitable access to vaccines. It is likely that the unvaccinated will be subject to travel restrictions and that work opportunities may be limited for them. In more extreme cases, countries may deliberately restrict access to vaccines for certain groups, contributing to a disproportionate infection and death rate among those populations. Israel, for instance, demonstrated its capacity to weaponize the vaccine by denying vaccinations to Palestinians.

The unvaccinated will therefore occupy the status of the “living dead”—a term that Achille Mbembe uses to describe a form of social existence in which, the distinction between life and death is ambiguous. While the unvaccinated negotiate their survival in this new dystopia, the vaccinated class will be dining in restaurants (indoors), they will show their vaccine passports, uploaded onto a mobile phone, to the airline attendant, the concierge, and the security guard.

But the emergence of the vaccinated and unvaccinated classes are further complicated by an increasing lack of confidence in vaccines because of safety and effectiveness concerns among others. In a recent study, vaccine acceptance was highest in Vietnam (98%), India (91%), China (91%), and lowest in Serbia (38%), Croatia (41%), and France (44%).

In addition, some vaccines will be more efficacious, establishing a hierarchy within the vaccinated class. For instance, the Pfizer vaccine is 95% effective but requires ultra-cold storage that may not be easily accessible in resource poor or remote settings. Low-income countries will therefore not only receive access after wealthier nations, but may also receive less effective vaccines.

In thinking through these contestations, it becomes apparent that the vaccine is not only a medical technology that can support the right to health, it is also an instrument of political power that can be deployed to create new forms of discrimination against already marginalized groups. Consequently, in order to be an effective emancipatory tactic, human rights advocates must acknowledge the vaccine’s politicization as well as mitigate attempts by states to engage in human rights as sovereignty.

A. Kayum Ahmed, Director, Access and Accountability Division, Public Health Program, Open Society Foundations, USA. Email: