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Vaccine equity campaigners carry a mock coffin in London.

People carry mock coffins in front of British Prime Minister Boris Johnson's office in London on October 12, 2021. (Photo: Hasan Esen/Anadolu Agency via Getty Images)

Global Jurists Say International Law 'Requires' Rich Nations to Stop Blocking Patent Waiver

"States have, at the very least, a duty not to obstruct TRIPS waiver negotiations," reads a legal opinion endorsed by 85 jurists from around the world.

Jake Johnson

A legal opinion published Monday by the International Commission of Jurists argues that the rich countries currently stonewalling a proposed patent waiver for Covid-19 vaccines are violating their "obligations to realize the rights to health, equality, life, and science."

"International law requires that States stop impeding the TRIPS waiver."

The opinion notes that "Article 12 of the International Covenant on Economic, Social, and Cultural Rights (ICESCR) guarantees the 'right of everyone to the enjoyment of the highest attainable standard of physical and mental health' (right to health) and obliges States Parties to take the steps necessary for 'the prevention, treatment, and control of epidemic, endemic, occupational, and other diseases' and the 'creation of conditions which would assure to all medical service and medical attention in the event of sickness.'"

"Article 6 of the International Covenant on Civil and Political Rights (ICCPR)," the document continues, "protects the right to life of every human being, requiring States to take measures to ensure healthcare essential to life without delay."

Endorsed by 85 jurists from around the world, the ICJ's opinion declares that the "Covid-19 pandemic, which threatens life and health, engages the obligations of the State Parties to ICESCR and/or ICCPR."

"Under international human rights law, States have, at the very least, a duty not to obstruct TRIPS waiver negotiations," the opinion states. "By opposing the negotiations, as many continue to do, these States fail to perform their treaty obligations under international human rights law in violation of the rights to health, life, equality, and science."

According to the ICJ, over 85% of members of the World Trade Organization (WTO)—which is currently debating the patent waiver—are parties to the ICESCR and the ICCPR, including Germany, the United Kingdom, Canada, Switzerland, and other major opponents of the proposal.

The proposed waiver of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement was first introduced at the WTO in October of 2020 by South Africa and India, and it has since been endorsed by more than 100 WTO member nations, the World Health Organization, Nobel laureates, and hundreds of civil society organizations.

If enacted, the waiver would temporarily suspend intellectual property (IP) rules that public health campaigners argue are hindering global vaccine production and fueling vast inequities in access to the lifesaving shots. Just 4.2% of people in low-income countries have received at least one coronavirus vaccine dose, according to Our World in Data.

"Bill Gates said a waiver of IP to unlock supply was the 'stupidest thing' he ever heard," Anna Marriott, Oxfam International's health policy lead, wrote Tuesday, referring to the Microsoft co-founder's comments last month dismissing the proposed waiver.

"Now eminent global jurists join South Africa and 100+ countries backing calls for the waiver," Marriott added. "I wonder if they are all stupid as well?"

While supported by powerful countries such as the United States and France, the waiver has been mired in fruitless negotiations at the WTO for more than a year as Germany, the U.K., and other rich nations continue to object. The WTO operates by unanimous consent, meaning a single nation has the power to block a proposal backed by every other member country.

The most recent meeting of the WTO's TRIPs Council last week adjourned without a breakthrough, but member nations reportedly expressed hope that there will be some sort of compromise. Proponents of the IP waiver view the WTO's upcoming ministerial conference on November 30 as potentially the last chance for nations to suspend patents and break the pharmaceutical industry's ultra-profitable stranglehold on vaccine supply.

On top of the moral argument voiced by supporters of the patent waiver, ICJ Secretary-General Sam Zarifi said in a statement Monday that there's a strong legal case for the proposed suspension of IP rules, which advocates say would allow factories across the globe to begin producing generic coronavirus vaccines.

"International law requires that States stop impeding the TRIPS waiver and instead ensure global health solidarity in access to Covid-19 vaccines and therapeutics," Zarifi argued.

"As the opinion published today decisively details, States must cooperate to ensure the full realization of all human rights, including in terms of their immediate obligations to ensure comprehensive access to Covid-19 vaccines and therapeutics," Zarifi added. "What's more, there is ample precedent with this WTO for the issuing of such a waiver in order to protect public health, in the public interest."

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