Mar 5, 2021 | News, Op-eds
An opinion piece by ICJ Commissioner, Rodrigo Uprimny, asks whether the existing COVID-19 vaccine patenting arrangements favouring the intellectual property interests of pharmaceuticals come at an unacceptable cost to protecting the life and health of millions. Commissioner Uprimny is also Researcher at Dejusticia and member of the UN Committee on Economic, Social and Cultural Rights.
During an informal conversation I was asked:
“Why is it that, although so many of us are dying due to COVID-19 and suffering from the dramatic state of the economy, we continue to wait for vaccines despite the availability of so many safe and effective ones? Is it that we cannot produce the vaccines locally?
The answer to this simple but essential question is that vaccine access is no longer a technical but also a political issue.
While Colombia cannot technically manufacture or produce some COVID-19 vaccines such as those based on the RNA messengers, many other countries, including several in the global South such as India, Argentina or Brazil, could. As has been highlighted by Doctors without Borders, there is no technical obstacle to mass vaccine production that would allow to vaccinate every one of the 7.8 billion human beings on earth within a few months
Instead, the obstacle is legal and political. It is the intellectual property that provides patents to pharmaceutical companies, who have developed COVID-19 vaccines. That creates a temporary monopoly. During such a temporary monopoly period, which usually lasts 20 years, no other company can produce their vaccines without permissions. As a consequence, those companies can impose and regulate the prices and conditions for the production of their vaccines.
Patents are defended by high-income countries, where many large pharmaceutical companies are based. They argue that there would be no innovation without patents as companies would not have incentives to research and develop new products.
Here, I will not dispute this defense of intellectual property, which is highly debatable. I would instead like to pose this question: even if patents were good and helped innovation, is it fair that they remain intact during the COVID-19 pandemic if they prevent rapid access to vaccines all over the world? The answer to this question is no, because we are condemning millions of people to die, but also because the epidemiological risks are extremely high. Each contagion poses a new risk for a novel coronavirus mutation that may eventually result in a variant that could escape the efficacy of current vaccines. It is also possible that a new mutation has a severe impact on the health of children, who have been somewhat spared from the more lethal impacts of COVID-19 until now.
In light of the current situation, without challenging the institution of intellectual property as such, South Africa and India issued a proposal to the World Trade Organization, the international organization overseeing such trade-related issues. They proposed a temporary exemption (or “waiver”) of patents on vaccines and treatments for COVID-19 at least until the pandemic is under control. A potential, fair compensation for companies who discovered the vaccines might also been considered, although obviously discounting the immense financial support they have already received from public funding.
This temporary exemption is crucial as current flexibilities in patent rights, such as compulsory licenses, are too rigid and limited to face the current crisis. This waiver provides the only opportunity for companies and States, with sufficient technical capabilities, to mass-produce necessary vaccines without having to fear the severe penalties of patent (intellectual property) violations.
While this proposal continues to face resistance from certain countries in the Global North, it is receiving growing support from many states, scientific and humanitarian organizations. Regrettably, the Colombian government has refrained from supporting it, with the shameful argument that more evidence needs to be provided. More evidence of what? Does it not suffice that we currently do not have access to necessary vaccines, although technically we could produce ample amounts? Or that available vaccines are, above all, headed to high-income nations? And is this mainly due to patents on vaccines that, far from being a fair award for innovation, seem to be letters of marque in favor of pharmaceutical companies, without any consideration of deaths and harms caused by the global lack of COVID-19 vaccines?
This op-ed was first published on El Espectador, 27 February 2021.
Download the Op-Ed in English and Spanish.
ICJ Statements on Vaccine Access:
Global: “ICJ calls on States to ensure human rights compliant access to COVID-19 vaccines (UN Statement)”: (1 March 2021)
Global: “ICJ urges the UN Committee on Economic, Social and Cultural Rights to call on States to comply with their obligations to ensure equitable access to vaccines for all” (15 Feb 2021): https://www.icj.org/icj-urges-the-un-committee-on-economic-social-and-cultural-rights-to-call-on-states-to-comply-with-their-obligations-to-ensure-equitable-access-to-vaccines-for-all/
Peru: “The COVID-19 vaccine demands international and national solidarity” (23 Feb 2021): https://www.icj.org/the-covid-19-vaccine-demands-international-and-national-solidarity/
Africa: “The ICJ recommends that the African Union acknowledge COVID-19 vaccines are a “public good” (4 Feb 2021): https://www.icj.org/the-icj-recommends-that-the-african-union-acknowledge-covid-19-vaccines-are-a-public-good/
Zimbabwe: “The ICJ and ZimRights ask for urgent intervention on access to COVID-19 vaccines from African Commission Mechanism” (19 Feb 2021): https://www.icj.org/the-icj-and-zimrights-ask-for-urgent-intervention-on-access-to-covid-19-vaccines-from-african-commission-mechanism/
Further reading:
UN Special Procedures: “COVID-19: UN experts urge WTO cooperation on vaccines to protect global public health” (1 March 2021): https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26817&LangID=E
UN Special Procedures: “Statement by UN Human Rights Experts Universal access to vaccines is essential for prevention and containment of COVID-19 around the world” (9 Nov 2020): https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26484&LangID=E
UN CESCR Committee: “Statement on universal and equitable access to vaccines for the coronavirus disease (COVID-19)” (27 Nov 2020) https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E/C.12/2020/2&Lang=en
IACHR and its SRESCER: “IACHR and its SRESCER Call on American States to Make Public Health and Human Rights the Focus of All their Decisions and Policies Concerning the COVID-19 Vaccine” (5 Feb 2021): http://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2021/027.asp
Oct 30, 2020 | Advocacy, Non-legal submissions
The Gauteng Township Economic Development Bill aims to promote local economic development in designated townships by creating and facilitating the creation of viable township businesses. The Bill establishes a Development Fund whose economic benefits and incentives are strictly reserved for citizens and permanent residents only.
The Bill would prohibit most non-citizens from large swathes of economic activity.
“This would include documented non-citizens like asylum seekers and refugees most of whom are not eligible for social assistance. It might prevent many non-citizens from making a living and could leave many destitute and homeless,” the ICJ Africa Director Kaajal Ramjathan-Keogh said.
“The Bill might also fuel existing xenophobic sentiment and could result in recurrences of xenophobic violence. Courts in South Africa have repeatedly warned government officials and departments against conduct that risks perpetuating xenophobia.”
If this Bill were to be enacted, South Africa would fall short of its requirements under both national and international law.
The ICJ has thus submitted their comments to the Gauteng Provincial Government, which you can find below.
Watch the animation on this issue
Oct 8, 2020 | News
Today, the ICJ, the Regional office of the UN High Commissioner for Human Rights (OHCHR) for Central Asia and the Supreme School of Judges of the Republic of Uzbekistan (SSJ) are beginning a national training on “International law on economic, social and cultural (ESC) rights.”
This two-day online-training is the second of a series of trainings on ESC rights, including, the right to health, education, housing, child protection and rights in the workplace.
The online-training aims to build the capacity of judges, lawyers, prosecutors, legal academics and other representatives of civil society to apply international law and standards on ESC rights. Trainers will share best practices on implementation by States of their international obligations, including through judicial practice, and in ensuring access to justice for ESC rights. The online-training will also allow for exchanges between members of the judiciary, other legal practitioners, and members of civil society.
The training will be based on four modules: (1) introduction to international law on ESC rights; (2) international obligations concerning access to justice and effective remedies for ESC rights in national courts and comparative examples of good practices; (3) children`s ESC rights and (4) women`s ESC rights. The office of the UN Special Rapporteur on independence of judges and lawyers and representatives of the UN Committee on the Elimination of Discrimination against Women will participate in the training.
“Nobody could imagine the challenges the world will face only in few months after my visit to Uzbekistan. We are witnessing and living this unprecedently challenge for individuals, societies and states to response to crisis at global and national level to protect right to life and health, and to protect individuals from impact of lockdowns and restrictions. Economic, social and cultural rights are the heart of these challenges,” said Diego Garcia-Sayan, the UN Special Rapporteur on independence of judges and lawyers in his video-address to the participants of the training.
Francois Begeot, Head of Cooperation of the Delegation of the European Union to the Republic of Uzbekistan pointed out, “COVID-19 pandemic showed the urgency and importance of economic, social and cultural rights that have to be ensured by the states, even in the emergency situations. Taking international obligations, Uzbekistan has to respect, protect and fulfil human rights including during the state of emergency and ensure access to justice and legal remedies.”
Read full press release here.
Watch Diego García-Sayán speech for the event:
Contact:
Ms. Dilfuza Kurolova, Legal Consultant, ICJ Europe and Central Asia Programme, e: dilfuza.kurolova@icj.org
Ms. Guljakhon Amanova, National Program Officer, Uzbekistan, Regional Office of the UN High Commissioner for Human Rights (OHCHR), e:gamanova@ohchr.org
Mr. Utkir Khalikov, Head of the international department The Supreme School of Judges under the Supreme Judicial council of the Republic of Uzbekistan for Central Asia, e: inter.dep.ssj@mail.ru
Sep 30, 2020 | Feature articles, News
Venezuela is suffering from an unprecedented human rights and humanitarian crisis that has deepened due to the dereliction by the authoritarian government and the breakdown of the rule of law in the country.
The International Organization for Migration (IOM) has estimated that some 5.2 million Venezuelans have left the country, most arriving as refugees and migrants in neighbouring countries.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) in 2018 had categorized this situation of human rights, as “a downward spiral with no end in sight”.
The situation of the right to health in Venezuela and its public health system showed structural problems before the pandemic and was described as a “dramatic health crisis (…) consequence of the collapse of the Venezuelan health care system” by the High Commissioner.
Recently, the OHCHR submitted a report to the Human Rights Council, in which it addressed, among other things the attacks on indigenous peoples’ rights in the Arco Minero del Orinoco (Orinoco’s Mining Arc or AMO).
Indigenous peoples’ rights and the AMO mining projects before the covid-19 pandemic
Indigenous peoples have been traditionally forgotten by government authorities in Venezuela and condemned to live in poverty. During the humanitarian crisis, they have suffered further abuses due to the mining activity and the violence occurring in their territories.
In 2016, the Venezuelan government created the Orinoco’s Mining Arc National Strategic Development Zone through presidential Decree No. 2248, as a mega-mining project focused mainly in gold extraction in an area of 111.843,70 square kilometres.
It is located at the south of the Orinoco river in the Amazonian territories of Venezuela and covers three states: Amazonas, Bolívar and Delta Amacuro.
It is the habitat for several indigenous ethnic groups[1] who were not properly consulted before the implementation of the project.
The right to land of indigenous peoples is recognized in the Venezuelan Constitution. Yet, as reported by local NGO Programa Venezolano de Educación- Acción en Derechos Humanos (PROVEA), the authorities have shown no progress in the demarcation and protection of indigenous territories since 2016.
Several indigenous organizations and other social movements have expressed concern and rejected the AMO project.
The implementation of this project has negatively impacted indigenous peoples’ rights to life, health and a safe, healthy and sustainable environment. Human Rights Watch, Business and Human Rights Resource Center, local NGO’s, social movements and the OHCHR, have documented the destruction of the land and the contamination of rivers due to the deforestation and mining activity, which is also contributing to the growth of Malaria and other diseases.
Indigenous women and children are among the most affected. The Pan-American Health Organization (PAHO) has reported that “the indigenous populations living in border areas of Venezuela are highly vulnerable to epidemic-prone diseases”, and it raised a special concern about the Warao people (Venezuela and Guyana border) and Yanomami people (Venezuela and Brazil border).
Women and children also face higher risks of sexual and labour exploitation and of gender-based violence in the context of mining activities.
The High Commissioner’s recent report mentions that there is “a sharp increase since 2016 in prostitution, sexual exploitation and trafficking in mining areas, including of adolescent girls.”
In addition, the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the United Nations Children’s Fund (UNICEF) have identified a trend among adolescents of dropping out of school particularly between the ages of 13 and 17. Indigenous individuals are acutely affected, as many children leave to become workers at the mines.
Violence and crime have also increased in the AMO. Criminal organizations and guerrilla and paramilitary groups are present in the zone, and the Venezuelan government has expanded its military presence. Indigenous leaders and human rights defenders have been targets of attacks and threats; and there is a persistence of allegations of cases of enforced disappearances and extrajudicial and arbitrary killings.
Current situation under COVID-19 pandemic
The COVID-19 pandemic and the lack of adequate response to it has aggravated this situation.
The government declared a state of emergency (estado de alarma) on 13 March and established a mandatory lockdown and social distancing measures. Yet mining activities have continued without adequate sanitary protocols to prevent the spread of the pandemic.
The State of Bolívar -the largest state of the country which is located in the Orinoco Mining Arc- has among the highest numbers of confirmed cases of COVID-19 which have included indigenous peoples.
The Venezuelan authorities’ response to the pandemic in these territories has not considered culturally appropriate measures for them. In addition, although authorities established a group of hospitals and medical facilities called “sentinel centres” to attend persons with COVID-19 symptoms, they are located in cities while indigenous communities live far from cities.
Furthermore, the lack of petrol in the country aggravates the obstacles to easy transportation to these centres.
Civil society organizations and indigenous leaders complain about the lack of COVID-19 tests and the data manipulation of the real situation of the pandemic. Also, the OHCHR reported the arbitrary arrest of at least three health professionals for denouncing the lack of basic equipment and for providing information about the situation of COVID-19, and stressed that there are “restrictions to civic and democratic space, including under the “state of alarm” decreed in response to the COVID-19 pandemic.”
[1] At least Kari’ña, Warao, Arawak, Pemón, Ye’kwana, Sanemá o Hotï, Eñe’pa, Panare, Wánai, Mapoyo, Piaroa and Hiwi.
Download
Venezuela-COVID19 indigenous-News Feature articles-2020-ENG (full article with additional information, in PDF)
Sep 25, 2020 | News
On 24 September 2020, the ICJ held a webinar in collaboration with the Lesotho National Federation of Organisations of the Disabled on the right to education for children with disabilities.
Presenters and participants included representatives from civil society organizations, teachers’ unions, teachers and the Lesotho Department of Education.
“Children with disabilities have a right to access to education on an equal basis with all other children. The COVID-19 pandemic must not hamper the Lesotho governments efforts to ensure access to inclusive education for all children,” said Kaajal Ramjathan-Keogh, ICJ’s Africa Director.
Participants highlighted accessibility-related problems faced by learners with disabilities in the context of the COVID-19 pandemic. Some examples include:
- Ordinary masks necessary to combat the spread of COVID-19 inhibit communication for learners with hearing disabilities who often communication in part by lip-reading. These require access to face visors and/or transparent masks. Some deaf students also had difficulty in understanding the COVID-19 pandemic and virus, despite efforts to explain it to them.
- Blind learners need more access to hand sanitizer as they need to touch their surroundings for mobility. This also makes social distancing more difficult for them.
- Teachers have trouble understanding how to comply with social distancing measures while assisting learners experiencing epileptic seizures.
- Many learners with disabilities have stayed at home during the pandemic, not understanding why they were not at school.
- Many children with disabilities are rendered more vulnerable to sexual violence and exploitation as they observe stay at home rules.
A representative of the Department of Education explained various measures which government had put in place to ensure that these obstacles could be overcome so that learners with disabilities could enjoy their right to education in the context of COVID-19. Learners’ health and safety would also remain a priority.
The Department noted the delays in the implementation of its inclusive education policy as a result of a lack of funding as government resources are diverted to COVID-19 responses.
The need for compliance with Lesotho’s global and regional international human rights obligations was also highlighted with participants agreeing about the importance of ensuring that there is “strength in numbers” in advocacy efforts toward the realization of children with disabilities’ right to education.
“Ensuring the right to education of persons with disabilities does not imply sacrificing and compromising their right to health. All human rights are interdependent and Lesotho should be guided by all of its human rights obligations as it continues to implement its domestic inclusive education policy during the COVID-19 pandemic,” Ramjathan-Keogh added.
Background
Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa require States parties to ensure that their education systems are inclusive and fully realize the right to education of all children with disabilities. The normative content of Article 24 of the CRPD and corresponding obligations of member States are expanded on in the General Comment No 4 of the Committee on the Rights of Persons With Disabilities.
For more information on the impact of COVID-19 on access to education, find the UN Special Rapporteur on the right to education’s report here.
Contact
Nokukhanya (Khanyo) Farisè, Legal Adviser (Africa Regional Programme), e: nokukhanya.farise(a)icj.org
Tanveer Jeewa, Communications Officer (Africa Regional Programme), e: tanveer.jeewa(a)icj.org
