Most importantly, the right to the enjoyment of the highest attainable standard of physical and mental health, as enshrined in Article 12 of the International Covenant on Economic, Social and Cultural Rights, is also clearly stated in Articles 12(2)(c) and (d) of the Covenant: “The steps to be taken by States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases; and (d) the creation of conditions which guarantee access to health services and medical care in the event of sickness.” (Emphasis and italics added). Thus, Article 2(1) of the International Covenant on Economic, Social and Cultural Rights is very clear about the fundamental obligation to cooperate in relation to the right to health under its Article 12, namely that cooperation must include that necessary for the prevention, treatment and control of epidemics, including global pandemics like COVID-19. According to Article 23 of the International Covenant on Economic, Social and Cultural Rights, international action for the realization of all economic, social and cultural rights set out in the Covenant can include “the provision of technical assistance”. The adoption of the proposal by India and South Africa to exempt the COVID-19 vaccine from the Agreement on Trade-Related Aspects of Intellectual Property Rights can well be included in international action aimed at providing such technical assistance, in line with the fundamental obligation to cooperate in the realization of all Covenant rights under Article 2, paragraph 1, of the Convention and to avoid the persistent or substantial deprivation of the means of subsistence of any people in the developing world in accordance with Article 1, paragraph 2, of the Convention.
The Council for Trade-Related Aspects of Intellectual Property Rights
With the review of a proposed TRIPS waiver on global access to COVID-19 vaccines, this is also an important international moment to reassess our understanding of development. A significant divide remains between the world trading system, which focuses more narrowly on economic development, and the right to development, which is more broadly premised on economic, social, cultural and political development based on all human rights and fundamental freedoms. It is of serious concern that in 2021, the EU’s position in resisting the proposed TRIPS waiver is that there is allegedly no evidence that intellectual property rights pose any barriers to access to COVID-19 vaccines. This position demonstrates an extremely short-sighted understanding of accessibility. As the Committee on Economic, Social and Cultural Rights has emphasized in its general comment No. 14 on the right to health, accessibility is a multidimensional issue:
(b) Accessibility. Health facilities, goods and services within the jurisdiction of the State Party must be accessible to all without discrimination. Accessibility consists of four overlapping dimensions:
Non-discrimination: Health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized groups, without discrimination on any prohibited grounds, either in law or in fact;
Physical accessibility to medical facilities
Products and services must be within safe reach of all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous peoples, women, children, youth, the elderly, persons with disabilities, and persons living with HIV/AIDS. Accessibility also means that health services and basic determinants of health, such as safe drinking water and adequate sanitation, must be within safe reach, including in rural areas. Accessibility also includes adequate building accessibility for persons with disabilities;
Financial accessibility (affordability): Health facilities, products and services must be affordable to all. Payment for health services and services related to the underlying determinants of health must be based on equity, ensuring that these services, whether provided privately or publicly , are affordable to all, including the most vulnerable groups in society. Equity requires that poor households should not bear a disproportionate burden of health costs compared to rich households;
Access to information: Accessibility includes the right to seek, receive and impart information and ideas relevant to health issues. However, access to information should not undermine the right to confidentiality of personal health data.