A timeline of COVID 19 and Human Rights: A vaccine, guinea pigs and prioritisation.

This is the fourth of a series of five blogs on COVID 19 and human rights, focusing on the timeline of the virus. Blog 1 focused on the beginning of the virus in China, in relation to the right to freedom of expression and rights of access to information. Blog 2 focused on the crisis in hospitals across the world in dealing with the COVID 19 case load. Blog 3 focused on human rights issues associated with lockdowns. This post looks to the future of the virus, that is the much-anticipated end of the crisis in the form of the development of a vaccine or effective treatment.

There has never been a vaccine for a coronavirus; one may not be developed for COVID-19. However, there is cause for optimism given the vast numbers of scientists and institutions throughout the world who are striving to develop a safe and effective vaccine.

A safe vaccine

A safe vaccine will have to be tested on humans prior to general release: indeed some human trials are already taking place. A question arises over the rights of the “guinea pigs” who are tested. Untested medicines can cause terrible side effects, threatening rights to life (Article 6 ICCPR) and health (Article 12 ICESCR). At the least, those upon whom such treatments are tested must give their informed consent. Proper ethical procedures and safety measures must be followed. Safeguards are particularly important given the possibility that there will be pressure for shortcuts to be taken amid the global clamour for a vaccine.

An accessible vaccine

New human rights issues will arise if and when a vaccine is available. On what basis will people be prioritised to receive it? After all, the vaccine could be a ticket to restoration of civil liberties and economic freedoms, as well as protection against a life threatening disease. It could well be the most anticipated medical breakthrough in history.

Those States with the most efficient and wealthy health systems are likely to be prioritised, as they will be the most able to access or manufacture the vaccine, and organise and manage mass vaccination. Those most at risk of death, such as the elderly and those with certain conditions like diabetes, would justifiably be prioritised, with perhaps a sliding scale down to those least at risk, such as healthy teenagers and children. Those who have recovered might get the vaccine last, if there is a strong assumption that they are already immune.

A huge aid effort will be needed to facilitate access to and safe delivery of the vaccine to the least developed States. Conversely, any deliberate restrictions on access, imposed for example by trade sanctions (such as those currently imposed by the US against Iran), would breach a State’s extraterritorial human rights obligations: States must not take measures that are likely to foreseeably harm the rights of people in other States (see statement by the UN Committee on Economic, Social and Cultural Rights at paras 20 and 22).* The World Health Organisation (“WHO”) could perhaps be funded to deliver a mass vaccination program, as it has with polio since the 1980s.

Patents and availability

The vaccine could be developed and/or manufactured in whole or in part by the private sector. Human rights principles would be compromised if the vaccine is patented and is consequently unavailable to those unable to afford it. This is most likely to be an issue in the developing world where public health systems are less able to subsidise access to medicines.

States have international obligations to protect people from rights abuses, including a duty to ensure that private businesses respect human rights. Businesses are expected to respect human rights but, as private actors, they have no international legal obligations to do so.

There are many arguments routinely made for and against pharmaceutical patents. Pharmaceutical companies argue that patents and consequent monopoly prices are needed in order to reward and incentivise the development of essential medicines. However, one may note that profits in the pharmaceutical industry are extraordinarily high. Furthermore, research and development may be skewed towards treatments for chronic “rich lifestyle” conditions rather than vaccines, which are less lucrative than drugs that must continually be taken.

An issue regarding access by the poor to life-saving medicines arose in the early 2000s regarding the availability of patented HIV treatments in poor countries. Eventually, the right of States to authorise compulsory licensing of patented drugs for certain life-threatening conditions was affirmed by the World Trade Organisation, and the treaty relating to Trade-Related Aspects of Intellectual Property (“TRIPS”) was amended to facilitate the export of compulsory licensed drugs. There could be even more pressure for effective access arrangements for a COVID-19 vaccine; a failure to ensure such access would be a breach of rights by States (see statement by the UN Committee on Economic, Social and Cultural Rights at paras 21).

Latest developments

The furthest advanced of many vaccine research initiatives in the world may be from Oxford University. The project team is already working with prospective manufacturers to scale up production rapidly should its current human trials establish safety and efficacy. However, it has not yet reached agreement with any manufacturer in North America, in part because the relevant pharmaceutical companies are demanding exclusive global rights. This is so, despite the fact that the research and development is being done by a university team backed by government and philanthropic funding, rather than industry money. One of the team leaders at Oxford has said that exclusive licenses are inappropriate in a time of pandemic: “Nobody is going to make a lot of money off this”.

Fortunately, a group of 25 key stakeholders, including States (eg UK, France, Germany), the World Bank, philanthropic organisations such as the Gates Foundation, and the International Federation of Pharmaceutical Manufacturers, agreed to the COVID-Access Agreement under the auspices of the WHO in late April 2020. They pledge to ensure equitable global access to any eventual vaccine. However, it is notable that the US and China did not sign up.

COVID 19 treatment

Similar human rights considerations apply in the respect of the development of new treatments for COVID-19, as opposed to a vaccine, especially if those treatments largely prevent COVID-19 fatalities. Again, the rights of those upon whom treatments are tested must be respected, and widespread access must be facilitated. The issues are possibly less acute with regard to treatment, as access will only be needed for those who are sick, rather than everybody. It is notable that public pressure has already forced Gilead, the manufacturer of Remdesivir, an anti-viral drug which is showing some promise in combating COVID-19, to withdraw a claim for monopoly control.

Next up

This post concludes the consideration of the COVID timeline, by examining the main human rights implications of the past, present and future of the pathogen. The final post considers the international law mechanism designed to deal with extraordinary crises, the notion of derogations from human rights in times of public emergency.

* The US is not a party to the ICESCR, but relevant obligations may perhaps be found in customary international law or other international law sources.

By Professor Sarah Joseph