It is July in the second year of the Coronavirus, and suddenly Africa feels like Europe and the United States in the first months of the pandemic. Reports of infections burning through populations—and hospitals nearly buckling under pressure—are making news headlines from Johannesburg, Lusaka, and Kinshasa sound like they are being beamed in from Lombardy, New York, and London circa April and May 2020. The intensity of transmission that African states tried to avoid through early and somewhat regular lockdowns in 2020 has finally arrived. 

The irony, of course, is that this was avoidable—vaccines are available and with them COVID-19 deaths have also become avoidable. In the global North, the narrative is that the impossible has been done—vaccines for COVID-19 have been developed in under a year through massive public investment in research and development (R&D), and almost half of the populations of the United States and United Kingdom have been vaccinated. 

And then, too, for much of the rest of the world, the narrative is that the impossible cannot be done. While the coronavirus has billions in India, Brazil and Peru gasping for breath, the dominant narrative remains that it is too complicated and too cumbersome to transfer newly developed COVID-19 technologies to the south. The EU has argued, for example, that dose-sharing is a more efficient response to the COVID-19 pandemic in the global South than a proposed COVID-19 TRIPS waiver tabled by India and South Africa at the World Trade Organization (WTO) in October 2020, which aims at building local manufacturing capabilities. The waiver would exempt global South countries from intellectual property (IP) rights which have been protected since the introduction of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement in 1995.

On this basis, many countries in the global North have stringently opposed the TRIPS waiver, though some within this block have shifted their position in recent months as evidenced by the newly announced mRNA technology transfer hub France will be launching in South Africa to locally manufacture vaccines. It remains that a more equitable distribution of existing doses is a necessary step in addressing the pandemic of vaccine hoarding that has exploded since effective vaccines have been authorized for use. But it should not be used as legitimate grounds for blocking vital technology transfers that could help secure what Cameroonian philosopher Achille Mbembe has described as “the universal right to breathe”.

One wonders, given the speed with which mRNA technologies were developed, whether the issue is one of complexity. Perhaps a more accurate word would be sacrilege? This sentiment is captured by the words of Pfizer CEO Albert Bourla, who described C-TAP, the COVID-19 patent pooling mechanism, as “dangerous” and “nonsense” —presumably in light of the fact that it would disrupt the sacred status attributed to intellectual property rights by the 1995 TRIPS agreement. Here, it is vital to state that this status is misplaced in the context of the pandemic. As the UN’s Committee on Economic, Social and Cultural Rights (CESCR) has correctly pointed out, “intellectual property is not a human right, but a social product, having a social function”. This means that member states of the International Covenant on Economic, Social and Cultural Rights (ICESCR), who have a duty to interpret TRIPS in a manner that protects public health, should consider supporting the TRIPS waiver.

These states have a legal obligation to ensure that multinational corporations domiciled in their territories do not violate the rights protected by the covenant abroad. In the time since the pandemic first hit, we have lost many lives—and have gained more infectious viral variants—while debating the “impossibilities” of technology transfer.

Vaccine Apartheid 

Two words have been become commonplace in our conversations about the management of the COVID-19 pandemic: apartheid and solidarity. The second seems to offer hope; the first, despair. Apartheid is of course frequently used to describe the unequal distribution of access to vaccines globally.

Vaccine apartheid is a now-familiar shorthand used to highlight that as of June 23, 2021 more than 2 billion COVID-19 vaccine doses had been distributed globally, with the lion’s share of 85 percent administered in high-income countries (HICs) and by contrast only 0.3% administered in low- and middle-income countries (LMICs). Vaccine apartheid is a predictable consequence of the unequal power relations between states, particularly LMICs and pharmaceutical corporations, that was brought into being with the TRIPS regimen. This imbalance in power relations was highlighted in the work of Susan K Sell, a Professor of Political Science and International Affairs at George Washington University, who has written extensively on intellectual property and international development. In the early 2000s, she vividly illustrated the importance of the human rights obligations of global pharmaceutical companies to allow the sick access to antiretroviral medications.

Mirroring the racial apartheid of the South African regime prior to 1994, access to COVID-19 vaccines has been extremely limited in those parts of the world that historian Vijay Prashad has referred to as the “darker nations”—those African and Asian countries which newly liberated themselves from colonialism and declared their vision for remaking the world anew at the Bandung Conference of 1955. This vision of Third World internationalism shared at Bandung centered on economic cooperation aimed at securing human welfare, anti-racism, and political solidarity. The interdependent nature of these important principles was echoed in two other declarations that anchored the Third World political project: 1974’s the Declaration on a New International Economic Order (NEIO) and the Alma Ata Declaration (1978). 

The close connections drawn between racial domination, technological progress and political independence are particularly striking in the NIEO, which was adopted at the Sixth Special Session of the UN General Assembly on May 1, 1974. The preamble of the NIEO declares that the international community wishes to “work urgently” to “make it possible to eliminate the widening gap between the developed and the developing countries and ensure steadily accelerating economic and social development and peace and justice for present and future generations”.

Its opening paragraph frames technological progress as something that can ensure the welfare of “the community of free peoples”, but that this potential is undermined in the context of “the remaining vestiges of alien and colonial domination, foreign occupation, racial discrimination, apartheid and neo-colonialism in all its forms” perpetuated by a “system which was established at a time when most of the developing countries did not even exist as independent States and which perpetuates inequality”.  

The solution to this, the Declaration argues, is not simply more aid and greater technology transfer, but a fundamental restructuring of political power within global governance structures. It calls for “active, full and equal participation of the developing countries in the formulation and application of all decisions that concern the international community”. 

Like the NIEO, 1978’s Alma Ata Declaration explicitly argues that the value of technological progress and the global economy lies, first and foremost, in the ability to promote human welfare. Furthermore, it argues that promoting human welfare is unlikely to occur unless both technological progress and the global economy are subject to political oversight, and in particular, democratic decision-making procedures at the global governance level that include meaningful participation by the global South. Focusing on the right to health in particular, the Alma Ata Declaration emphatically maintains that “The people have the right and duty to participate individually and collectively in the planning and implementation of their health care”.

These formulations are striking in their efforts to frame solidarity as a multi-dimensional and relational process that transforms everyone involved in it. Former President of Mozambique Samora Machel said solidarity is “not an act of charity, but mutual aid between forces fighting for the same objective” and involves both “political tasks and material support”.

His words are striking because in the context of vaccine apartheid, solidarity is more often framed as an act of giving by those who have to those who don’t, rather than a process. The ailing COVID-19 Vaccines Global Access (COVAX) initiative is perhaps the most striking example of this approach to overcoming vaccine apartheid. It is explicitly described as a “global solidarity initiative” and prioritizes providing material support to LMICs by subsidizing the price of vaccines for eligible countries and attempting to pool procurement. This objective has been undermined by the rapacious behavior of countries in the global North that have bypassed COVAX by using bilateral deals to purchase excessive amounts of vaccines in proportion to their population size—effectively monopolizing access to the already-limited global supply of vaccines.

This focus on material aid to countries that have been priced out of the market for vaccines effectively reduced COVAX to a charity mechanism. Moreover, the marginal role of the World Health Organization (WHO)—and its member states—in its decision-making structures ignores the “political tasks” that are necessary to enact solidarity. COVAX does not aim to dismantle the IP thickets that impede access to vaccines, and which have contributed to an official global death toll that has currently surpassed 4 million people. It certainly does not aim to dismantle the injustice created by the unequal control of money, power and resources that has intensified since the 1990s, and that reflects a longstanding extractivist orientation established in the colonial period, These have led to COVID-19 disproportionately damaging the livelihoods and taking the lives of racial and ethnic minorities, women, migrants, indigenous peoples, and the poor. As the extracts from the declarations above show, a commitment to this political work was encoded in the forms of internationalism that led to, and were endorsed in the Bandung Declaration, NIEO, and the Alma Ata Declaration. 

Social Vaccines

The challenge then becomes how to address Third World concerns whether another more equitable mechanism is possible. Endorsing the TRIPS waiver request submitted to the WTO by South Africa and India in October 2020 is one necessary approach. The waiver has been challenged on the grounds that it will not make a meaningful difference in increasing access to vaccine supply in the short-term, given that it will take some time for countries in the global south to build up local manufacturing capacity. A second argument is that we don’t need the waiver, as existing TRIPS flexibilities are sufficient for addressing supply shortages. These arguments miss the political and normative significance of the TRIPS waiver. 

The power of the waiver is that it sets a legal precedent in favor of prioritizing public good over profiteering, and it affirms this principle as non-negotiable and unambiguous in the context of international trade, R&D, and manufacturing practices. To borrow from Austro-Hungarian economist Karl Polanyi, it re-embeds the market in society, thereby introducing a significant normative shift in light of the neoliberal discourse that’s become hegemonic in recent years. The waiver, much like the important recommendations of the UN High Level Panel on Access to Medicines released in 2016 (and since systematically erased from initiatives to reform the global R&D landscape for essential medicines), affirms that the market works to promote collective wellbeing. It also creates legal certainty—something that currently doesn’t exist when countries in the global South attempt to use TRIPS flexibilities. This is worth implementing because the space created by discounting the threat of retaliation (on the grounds of alleged copyright infringement) can create forms of collective action and collaboration that are currently not possible in the context of the existing legal and political landscape.

From a technical point of view, patents might thus seem to be a small impediment to accessing vaccines. However, from a political and normative point of view, an IP waiver on the copyrights, industrial designs, patents and undisclosed information relevant to COVID-19 diagnostics, therapeutics, and vaccines is potentially revolutionary, as it reasserts political control over the market. This aspect of the waiver and the precedent it sets is perhaps why it is being resisted at all costs by big pharma and some powerful countries in the global North. Law functions as an important mechanism for regulating the interplay of public health and for-profit or private interest. The historical declarations cited above demonstrate that while legal reforms are a necessary component of addressing this crisis, they are insufficient. As argued by Australian social scientist Fran Baum, in addition to these reforms, an investment in “social vaccines” is needed:

“A social vaccine is a process of social and political mobilization which leads to increased government and other institutions’ willingness to intervene with interventions, applied to populations rather than individuals, aimed at mitigating the structural social and economic conditions that make people and communities vulnerable to disease, illness and trauma. While medical vaccines help develop immunity against disease, social vaccines develop the ability of communities to resist and change social and economic structures and processes that have a negative impact on health and force governments to intervene and regulate in the interests of community health.”

The vaccine apartheid has legalized racially based discrimination. Today, the TRIPS regime is implemented in a manner that means people suffer pain, discomfort, death and permanent disability because they do not have the money to pay for patented medicines, and because their governments cannot easily manufacture or import these medicines or their generic equivalents. The hoarding of vaccines in the global North, their “gifting” to the global South, and the profound hesitancy to support local manufacturing of a life-saving technology in these countries, are all part of a long and disturbing history of global capitalism, which has allowed a small group of elites the power “to foster life or disallow it to the point of death,” in the words of French philosopher Michel Foucault. It is exactly this necropolitics—this undemocratic concentration of power which dictates how people live and die—that was supposed to be challenged by the multilateral system born out of World War II and that the liberated nations of the Third World aimed to reshape. 

The TRIPS waiver offers an entry point for reversing this tide and must be supported as a matter of urgency. In tandem, we need transparent, multilateral mechanisms that allocate vaccines based on medical need—not purchasing power—and that allow governments of the global south meaningful participation in decisions about collective procurement and allocation of global vaccines supplies.