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Coordinated legal efforts call on “recalcitrant” governments to support proposed waiver of COVID-related intellectual property monopolies at the WTO

Just Fair and Global Justice Now have sent a letter of concern to the UK government setting out why the failure to support the waiver contravenes international human rights law. Meanwhile, human rights lawyers in other nations have threatened legal action against the German, Norwegian, and Canadian governments today for obstructing global efforts to increase access to COVID-19 vaccines and other healthcare technologies. 

The move comes as state delegates from around the world prepare to negotiate the future rules governing the supply of COVID-19 vaccines and other healthcare technologies at next week’s Ministerial Conference of the World Trade Organisation (WTO).

A group of human rights advocates—the European Centre for Constitutional and Human Rights (Germany), Professor Andenæs QC at the University of Oslo (Norway), and a coalition of organizations in Canada —today announced the development of prospective domestic lawsuits in each country should their governments fail to support the waiver of intellectual property over COVID healthcare technologies proposed by South Africa and India at the WTO last year in response to the pandemic. This coincides with a letter from Global Justice Now and Just Fair the UK Secretary of State for Trade on why the failure to support the waiver contravenes international human rights law.

In letters and case materials released today, the organizations decry the immense global disparities in COVID vaccine and therapeutics access and affirm their governments’ obligations under international human rights law to take all steps within their power to ensure the human rights to life, health, equality, and benefit from scientific progress. 

The advocates say that these legal duties oblige governments to support the proposed waiver of intellectual property rules on COVID-19 vaccines, diagnostics, and treatments. They cite legal duties relating to international cooperation, good faith implementation of treaty obligations, and access to justice. At next week’s WTO conference, delegates will discuss a temporary waiver of the Trade-Related Intellectual Property Rights Agreement (TRIPS) in relation to COVID healthcare products. 

An urgent letter to Canada’s Minister of International Trade (traduction) signed by multiple organizations and human rights experts released today, warned that if Canada fails to support the TRIPS waiver, this decision could be challenged in domestic courts as a failure to implement Canada’s human rights obligations in good faith, through international cooperation.  It stated that such a decision could also be challenged as a violation of rights to life, security of the person and equality in the Canadian Charter of Rights and Freedoms because of its effect on the life and health of vulnerable groups in Canada, including women, the elderly, persons with disabilities, Indigenous Peoples, Black people, other racialized persons, and persons experiencing poverty.  

The letter noted that Canada’s Prime Minister, Justin Trudeau and its Chief Public Health Officer have repeatedly stated that an effective global strategy to limit the spread of COVID-19 is necessary to help prevent the emergence of more transmissible or deadly variants, and to protect life and health in all countries. 

On the letter of claim filed today in Germany on behalf of Ugandan citizens, Miriam Saage-Maaß of the European Centre for Constitutional and Human Rights said:

“It is important that the German government lives up to its extraterritorial human rights obligations and does everything within its power to enable equitable access to the most effective COVID19 vaccines. Germany can no longer defend a position that enforces vaccine apartheid and which unnecessarily prolongs the pandemic situation worldwide.”  

Germany has been a staunch supporter of the intellectual property monopolies that currently govern the supply of COVID healthcare technology, this despite a current surge in cases nationally in the wake of virus variants cropping up around the globe.

Professor Mads Andenæs QC at the University of Oslo said, “court action against the Norwegian government is to commence, challenging the inadequate responses by the government to comply with its obligations under international and European human rights law and the Norwegian constitution.” Norway has so far failed to support the waiver. Norwegian Ambassador Dagfinn Sørli currently chairs the WTO TRIPS Council.

On today’s letter in the United Kingdom, Nick Dearden of Global Justice Now said, “Throughout this pandemic, the UK government has put the interests of big pharmaceutical businesses ahead of the need to save lives around the world and defeat this pandemic. The epitome of this approach is that they have effectively blocked, repeatedly, the one measure the vast majority of the world has demanded – the waiver of intellectual property rules at the WTO. We hope our action today will send a clear message: they need to stop blocking action at the WTO.” The United Kingdom has so far refused to back the TRIPS waiver.

These domestic efforts form part of a broader set of legal strategies being pursued before multiple mechanisms entrusted with the enforcement of human rights.

Since May 2021, a group of human rights networks and their members and allied organizations have been convening to discuss how human rights legal mechanisms may be leveraged to achieve equitable global access to COVID-19 healthcare technologies and realize the right to health and other human rights of all people. These include: the Global Network of Movement Lawyers (at Movement Law Lab), ESCR-Net – International Network for Economic, Social and Cultural Rights, the International Network of Civil Liberties Organizations, members of the People’s Vaccine Alliance, including Oxfam International and Amnesty International, and Médecins Sans Frontières

Previous actions include petitioning the United Nations Committee on the Elimination of Racial Discrimination, and advocacy also led to 43 letters from United Nations human rights Special Procedures mandate holders to member states, pharmaceutical corporations and the WTO.  Dozens of jurists around the world also signed a legal brief on states’ human rights obligation to not impede a TRIPS waiver and other actions. In addition, Just Fair was a signatory to this letter to Chancellor Merkel in June 2021, in advance of the WTO TRIPS Council meeting.

We are continuing to work collectively to surface the issues posed by states’ decision to privilege the intellectual property monopolies of corporations over the human rights to life, health, equality, and benefit from scientific progress of people across the global south and the global north.

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