The Obligations of Governments and Big Pharma Regarding Equitable Vaccine Supply

• Author: Lyatitima Ernest Mate
• DOI: 10.25159/2522-6800/10092
• Published date: 01 June 2022
• Date: 01 June 2022
• Pages: 1-25

Article

Souther n African Public Law

https://d oi.org/10.25159/2522-6800/10092

https://u nisapressjournals.co.za/index.php/SAPL

ISSN 2522- 6800 (Online)

#10092 | 25 pages

© Unisa Press 2022

The Obligations of Governments and Big Pharma

Regarding Equitable Vaccine Supply

Lyatitima Ernest Mate

https://orcid.org/ 0000-0002-3376-7641

University of the Witwatersrand

lyatitimamate@gmail.com

Abstract

The COVID-19 pandemic has wreaked havoc the world over, simultaneously

creating opportunities for some, including ‘Big Pharma.’ Governments continue

to have the obligation for managing the pandemic, and many governments

delegated the responsibility for vaccine supply to Big Pharma. Developed

countries generously f unded vaccine development, while reserving the first

option to purchase the vaccines for themselves, thus being accused of vaccine

hoarding. Concurrently, Big Pharma has disclaimed liability for any side effects

caused by the virus, and any obligation to share its vaccine intellectual property.

This left mo st of the world, particularly the Global South, in a precarious

position regarding vaccine su pply. This article discusses the obligations of

governments to their own people and to the rest of the world and the obligations

of Big Pharma, specifically regarding equitable vaccine sup ply during the

COVID-19 pandemic. To articulate its arguments for vaccine equity, the author

relies primarily on the right to dignity and attempts to balance this right against

the seemingly conflicting interests of the Global North. The vaccine equity issue

is an intersectional issue perpetuated by systemic inequalities affected by a

myriad of f actors including historical power imbalances. It is argued that all

parties need to act to overcome the pandemic, especially states and companies

in the Global North. This would be consistent with international policy and legal

environment and the requirements of global justice.

Keywords: COVID-19; global justice; Big Pharma; vaccine equity; positive

obligations

Mate

2

Introduction and Context

Early in 2020, as the COVID-19 pandemic wreaked havoc the wo rld over, it

simultaneously created opportunities for tho se capable of finding and seizing them,

including ‘Big Pharma.’ This term refers to large an d powerful pharmaceutical

companies

1

such as Johnson & Johnson, Pfizer, Moderna and Astra-Zeneca, which

became the leading COVID-19 vaccine manufacturers. To manage the crisis, many

governments imposed measures to restrict movement, disinfect personal and public

spaces and contain the spread of the virus.

2

Governments had the primary responsibility for managing the pandemic but many

governments have delegated their vaccine supply responsibility to Big Pharma.

Developed countries generously funded vaccine development, while reserving first

option to purchase the vaccines for themselves, thus attracting accusations of vaccine

hoarding, which highlighted the fact that there should be greater international

cooperation and solidarity between states especially during health emergencies such as

the COVID pandemic, on the basis of mutual respect.

3

However, in addition to vaccine

hoarding, states have been guilty of f ood hoarding, personal protective equipment

hoarding and paracetamol and antibiotic hoarding

4

— all of which are inconsistent with

the international law obligation for states to cooperate in the interest of advancing

human rights.

5

Against this background, Big Pharma has disclaimed liability for any side effects caused

by the vaccines

6

and negated any obligation to share its vaccine intellectual property

(IP). This left most of the world, particularly the Global South, in a precarious position

regarding vaccine supply: they had to secure sufficient stock of COVID-19 vaccines,

while meeting the onerous demands of Big Pharma.

7

1

‘Big Pharma’ /dictionary.cambridge.org/dictionary/english/big-pharma> accessed 1 April

2022.

2

In South Africa, this was done under the Disaster Management Act 2002 s 3,27. and its regulations.

3

UN H uman Rights Council, ‘International Solidarity in Aid of the Realization of H uman Rights

during and after the Coronavirus Disease (COVID-19) Pandemic Report of the Independent Expert

on Human Rights and International Solidarity’ 4

hr.org/documents/dpage_e.aspx?m=153> accessed 31 M arch 2021.

4

ibid 13–14.

5

ibid 12. S ee also International Covenant on Economic, Social and Cultural Rights 1976 s 2(1).

Charter of the United Nations 1945 s 55, 56.

6

See Aisha Abdool Karim and Joan van Dyk, ‘How South Africa’s COVID Vaccine Injury Fund Will

Work’ (Bhekisisa, 20 April 2021) < https://bhekisisa.org/health-news-south-africa/2021-04-20-how-

sas-COVID-vaccine-injury-fund-will-work/> accessed 1 April 2022. European Commission, ‘Advance

Purchase Agreement (AP A) for the P roduction, Purchase and Supply of a COVID-19 Vaccine in the

European Union’ .europa.eu/info/sites/default/files/eu_apa_-_executed _-

_az_redactions.pdf> accessed 1 April 2022.

7

The ‘Global North’ and ‘Global South’ are terms used to describe groups of countries with similar

socio-economic and political characteristics rather than a geographical location. The countries of the

Global North are generally developed countries including the United States and the United Kingdom