Human rights, harmonious interpretation and the hegemonic international trade regime: The case of the COVID-19 TRIPS waiver proposals
| Citation | (2022) IPLJ 66 |
| DOI | https://doi.org/10.47348/SAIPL/v10/a4 |
| Published date | 23 February 2023 |
| Pages | 66-104 |
| Author | Samtani, S. |
| Date | 23 February 2023 |
66
https://doi.org/10.47348/SAIPLJ/v10/a4
HUMAN RIGHTS, HARMONIOUS
INTERPRETATION AND THE
HEGEMONIC INTERNATIONAL
TRADE REGIME: THE CASE OF
THE COVID-19 TRIPS WAIVER
PROPOSA LS
Postdoctoral resear ch fellow at the South African Research C hair Initiative in
International a nd Constitutional Law, Depar tment of Public Law, University of
Pretoria
ABST RACT
Although the COVI D-19 pandemic has recede d from daily news covera ge, it still
continues. De spite states comm itting to a huma n rights approach to e nding the
pandemic, and be aring human rights obliga tions to that effect, t hey have under-realised
internat ional trade regime as one of th e key reasons for this failure. T he article analyses
the COVID-19 TRIPS wa iver proposals and the Gen eva package outcome emergi ng from
the World Trade Organisat ion (WTO). It focuses on one aspect of both wa iver proposals
that is absent f rom the Geneva package out come: states’ commit ment to refrain f rom
approaching t he WTO Dispute Sett lement System (DSS). The ar ticle argues th at state
parties to i nternationa l human rights t reaties and the WTO -covered agree ments bear
concurrent trade, intellectual property and human rights obligations. W hile internatio nal
law requires st ates to harmon iously interpret t hese obligations to give ef fect to all of them,
states have faile d to do so. Instead, st ates’ trade and intelle ctual proper ty obligations have
become hegemonic, le ading to the prioritis ation of the market at the cost of human l ives
during one of th e biggest humanita rian crises i n recent memory, and nece ssitating the
waiver proposals. T he article concludes t hat, in the short t erm, waivers of intel lectual
propert y obligations as well as com mitments not to br ing actions at the W TO DSS are
In the longer ter m, this state of af fairs highlig hts the need for rethi nking exist ing
internat ional legal struct ures and the values that t hey promote.
KEYWORDS: intelle ctual prop erty law; hu man rights law ; internat ional law; inter national
trade law; pand emics; COVID-19
0000- 0003-0448 -8798. Author’s note: This resear ch was supporte d by the National Resear ch
Foundation of South A frica. All opinion s expressed in this a rticle are those of the autho r alone.
This art icle also draws on the researc h conducted as part of the aut hor’s PhD thesis titled ‘The
Right of Access to E ducational Mater ials and Copyrig ht: Internat ional and Domestic L aw’
(University of O xford, 2021). An early version of this researc h was presented at the Amer ican
Society of Inte rnational Law’s mid-year me eting in Octobe r 2021. This research also for med part
of an expert lega l opinion endorsed by over 140 expe rts, of which the author wa s one of the lead
co-authors: S Sa mtani & T Fish Hodgson ‘Human r ights obligations of states t o not impede the
proposed COVID -19 TRIPS waiver’ (November 2021, Inte rnational Comm ission of Jurists).
(2022) IPLJ 66
© Juta and Company (Pty) Ltd
https://doi.org/10.47348/SAIPLJ/v10/a4
The COVID-19 pandemic has portended ou r entry into the pandemic era.1 At
cases of COVID-19, including 6,6 million deaths, reporte d to the World Hea lth
Organization (WHO).2 Countries around t he world are ‘emerging’ from
COVID-19 by lifting public health measures , including mask mandates and
travel rest rictions.3 This is despite the fa ct that, two years into the pande mic,
there is no universal acc ess to vaccines and other health te chnologies and
therapeutics. Several count ries have reported excess death s from COVID-19
4 The lat ter include the
impact of public health measures t aken to reduce transmission.5
At the same time, WHO has be en investigating outbreaks of monkey pox
occurri ng around the world, and had, in July 2022, declared it a public health
emergency of internationa l concern.6
vaccine is effective in mitigati ng the illness.7 As of August 2022, only one
vaccine manufact urer, Bavarian Nordic based in Den mark, has received
approvals from United States ( US) and European Union (EU) regul atory
authorities to produce its sma llpox vaccine at scale. Fortune magazine
recently reported t he CEO of Bavarian Nordic as saying: ‘Demand keeps
rising and it’s no longer certain that we [Bavar ian Nordic] can continue
to meet the demand.’8
against Oxford Biomedica, seek ing to enforce three patent s that formed
1 D Morens & A Fauci ‘Emergi ng pandemic disea ses: How we got to COVID-19’ 2020 Cell
1077–1092, available at https://doi.org/10.1016/j.cell.2020.08.021, as cited in MA Pete rs ‘The
coming pande mic era’ (2022) 54 Educational Philo sophy and Theory 656 .
2 WHO Covid-19 Dashboard (Novemb er 2022), available at https://covid19.who.int (accessed
20 November 2022).
3 As of 22 July 2022, 62 countries h ad completely lifte d Covid-19 travel restrict ions. See
UNWTO AMNEWS vol 44, August 2022 , available at https://www.unwt o.org/am-news-vol-44-
august-2022 (accessed 20 August 2022).
4 E Mathieu, H Rit chie, L Rodés-Gui rao et al ‘Excess mort ality during t he Coronavirus p andemic
(COVID-19)’, available at https://ourworldindata.org/excess-mortality-covid (accessed
20 November 2022). See also CR Wells & A P Galvani ‘The global impact of di sproportionate
vaccination c overage on COVID-19 mortalit y’ (2022) 22 The Lancet Infe ctious Disease s 1254.
5 S Zweig, A Zapf, C Bey rer et al ‘Ensuri ng rights while prot ecting health: T he importanc e of
using a human r ights approach in implement ing public health responses t o COVI D-19’ (2021)
23(2) Healt h and Human Rights Jour nal 173–18 6.
6 WHO ‘W HO Director-General’s statemen t on the press conference followin g IHR Emergency
Committe e regarding the mu lti-countr y outbreak of monkey pox’ (23 July 2022), available at
https://www.who.int/director-general/speeches/detail/who-director-general-s -statement-on-
the-press-conference-following-IHR-emergency-committee-regarding-the-multi--country-
outbreak-of-mon keypox--23-july-2022 (accessed 20 Novemb er 2022). See also WHO
‘Multi-count ry outbreak of mon keypox: Extern al Situation Repor t 10’ (16 November 2022),
available at https://www.whoint/publications /m/item/multi-country-outbrea k-of-monkeypox--
external-situat ion-report--10---16-november-2022 (accessed 20 November 2022).
7 WHO ‘Factsheet s: Monkeypox’ (19 May 2022), available at https://w ww.whoi nt/news-room/
fact-sheets/de tail/monkeyp ox (accessed 20 August 2022).
8 Fortune ‘Monkeypox vaccine make r Bavarian Nordic st ruggling to kee p up with demand’
(17 August 2022), available at https://for tune.com/2022 /08/17/monkeypox-vaccine-maker-
bavarian-nordic-struggling-to-keep-up-with-demand-rolf-sass-sorensen/ (accessed 20 August
2022).
HUMAN RIGHTS, HARMONIOUS INTERPRETATION AND THE
HEGEMONIC INTERNATIONAL TRADE REGIME 67
© Juta and Company (Pty) Ltd
https://doi.org/10.47348/SAIPLJ/v10/a4
the basis for its smallpox vaccine (M VA-BN).9 The then CEO of Bavaria n
Nordic was quoted as saying: ‘We are pleased with the decision in t he court
case allowing Bavarian Nordic to c ontinue to defend its valuable intellectual
property related t o the MVA-BN® technology. We will continue vigorously to
defend our patents against any i nfringement that threatens Bavar ian Nordic’s
full commercia lization of its intellectual property.’10
Bavarian Nordic has acknowledged th at it cannot meet the demand for
vaccines at scale. However, questions remain: Will Bavaria n Nordic move
against other phar maceutical companies that attempt to pr oduce vaccines? Or
will it continue to defend its patents at t he cost of severe illness to children,
pregnant women and immu nocompromised people around the world,11
by limiting manufa cturing per missions to those companies with wh ich it
chooses to contract?12 Denma rk, where Bavarian Nordic is headqu artered, is
party to the I nternational Covenant on Economic, Social and Cultu ral Rights
(ICESCR). It bears obligations to realise the right to hea lth, among other
rights in the ICESCR, and t o regulate businesses with in its jurisdiction.13
Denmark is also a membe r of WHO, housing the WHO European regional
headquart ers.14 As part of the EU, Denmark is also pa rty to the Agreement on
Trade Related Aspects of Intellectu al Property Rights (TRI PS).15 How should
Denmark domestical ly interpret its concur rent human rights obligations
and intellectual pro perty obligations under the se instrument s to respond
to the public health emergency? To what extent does Denmark r egulate
pharmaceutical m anufacturers? Would these laws be inter preted differently
if monkeypox was declared a pa ndemic? To what exte nt does Denmark have
obligations of international coo peration and assistance? To answer these
questions, one can draw i nsights from how Denmark, and indeed othe r states,
responded to the COVID-19 pandemic with regard t o access to vaccines,
health technologies and othe r therapeutics.
9 Bavarian Nord ic Investor news, availa ble at https://www.bavari an-nordic com/investor/news/
news.aspx?news=2015 (accessed 20 August 2022).
10 Bavarian Nord ic Investor news ‘The cou rt support s Bavarian Nordic’s decision to st art
patent inf ringement case ag ainst Oxford BioMedic a’, available at https://www.bavarian -
nordic com/investor/news/news.aspx?news=1989 (accessed 20 August 2022). The matter
was settled i n 2010. See Globe Newswire ‘Bavarian Nor dic and Oxford BioMedica se ttle all
legal disputes o n MVA-BN’ (27 January 2010), available at https://ww w.globenewswire com/
news-release/2010/01/27/151613/0/en /Bavarian-Nordic-and-O xford-BioMedica-settle-all-legal-
disputes- on-MVA-BN.html (accessed 20 August 2 022).
11 WHO ‘Multi-cou ntry outbrea k of monkeypox: Exter nal Situation Re port 10’ (16 November
2022), available at https://www.who.int/publications/m/item/multi-count ry-outbreak-of-
monkeypox--e xternal-situ ation-report--10-- -16-november-2022 (accessed 20 November 2022).
12 R Arthur ‘Bava rian Nordic engage s US contract manu facturer to i ncrease smallpox /
monkeypox vac cine capacity’ BioPharma Reporter (22 August 2022), available at htt ps://www.
biopharma-reporter.com/Article/2022/08/22/bavarian-nordic-signs-us-smallpox-monkeypox-
vaccine-f ill-finish-ag reement (accessed 20 Novembe r 2022).
13 OHCHR s tate parties to i nternational hu man rights tre aties, available at htt ps://indicators.ohchr.
org (accessed 20 Novembe r 2022).
14 WHO ‘Denma rk’, available at https://www.who.int/den mark/about-us (acce ssed 20 November
2022).
15 WTO ‘De nmark and the WTO’, available at ht tps://www.wto.org/english/t hewto_e/countr ies_e/
denmark _e.htm (accessed 20 November 20 22).
68 South African Intellectual Property Law Journal (2022) 10
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