“Solutions are often a gateway to more problems..”
The menace of the Corona Virus has hit the world with an unforeseen and ungauged force. It has infected over 16 million people and killed 654,000. This has created mass hysteria as people are living in a constant state of fear. Hence, the question that plagues everybody’s mind nowadays is ‘When will the Covid-19 vaccine be invented?’.
This might appear to be a simple enough question but is a pandora’s box in reality, as it unveils multiple facets of other questions, which the world might not be ready to answer: If a country is able to invent the vaccine, would it follow upon the promises of global solidarity or exploit their position of power? How much significance would be attached to the political alliances and economic considerations, in global distribution of vaccines? How will the International IPR and competition laws come into play in a sui generis situation like the present? The quest to find answers to such questions becomes momentous in the light of the fact that a handful of companies are being considered as the frontrunners in development of vaccines and the formulation might be closer than envisaged.
1. Global solidarity: Need of the moment
“We will only halt COVID-19 through solidarity”, said WHO Director General, Tedros Adhanom. He urged that countries, health partners and the private sector must act together to ensure that fruits of science and research can benefit everybody. However, countries’ have adopted an attitude of ‘Every nation for itself’, which has reinforced a trend of nationalism, consequently undermining International cooperation.
Although, the WHO initiative of ‘Solidarity trial’, a global search for potential treatments of COVID-19, casts a ray of hope as it witnesses the participation of countries like France, Argentina, Bahrain. However, the fact remains that the frontrunners of vaccine development like the United States, China, Russia have snubbed the trial in favour of national interests. Hence, this initiative might appear promising, however the ground reality remains that there cannot be “global solidarity” in vaccine distribution without major vaccine-producing countries. It is the need of the moment for countries to realise that coronavirus does not discriminate between countries and hence, represents an unprecedented test of global solidarity. It is paramount that the countries do not perceive the invention of vaccines as a one-way ticket to establish global dominance and to lift their countries out of the recent economic stump, but rather as the panacea that it will be.
2. What History tells us?
A utopian scenario where all of the countries stand firmly on their promises, is something the world is looking forward to, with a sincere hope placed on the credibility of the nations. But this hope is quite deflecting though.
Historical experiences of such pandemics reveal that moral, ethical and social dilemmas do not stand a chance when it comes to the interest of protecting one’s own country’s health and economic needs. This is evidenced by the state of affairs during the Swine Flu pandemic, when unrest was seen all around, promises were made with regard to the global vaccine availability but when the time came, prioritized distribution was first made in accordance to a country’s political and economic standing. There were instances of pre-purchase agreements by powerful countries like the USA for vaccines and only when the actual demand for the vaccine dropped, they reached out in support to developing and poor countries, quite contrary to their initial promises. The situation was the same in the cases of HIV, Ebola and Zika virus outbreaks. So, what makes us think that this time would be any different? And considering the grave situations of the falling economies, the conditions at present are all the more vulnerable.
As accurately said by the 19th century philosopher George Santayana that “Those who cannot remember the past are condemned to repeat it.”
3. The legal roadblocks
Most modern legal systems were not designed with a global pandemic in mind. They were outlined to maintain a fine-line balance between public needs and private interests. However, this fails to account for exceptional situations like the present, where the public needs at large might have to override individualistic interests.
Intellectual property concerns
How likely is it that a pharmaceutical giant which develops the first-ever COVID-19 vaccine, will make it freely available worldwide? Not very likely. The very idea of such global-spirited initiative seems alien. In absence of a premeditated international legal game-plan, the first thing that this company might do is file for a patent, which will bar other entities from producing the vaccine. This is not merely speculative as is evidenced by the accessibility and affordability problems that have arisen due to patent-marking of the three life-saving COVID-19 drugs -remdesivir, favipiravir, and lopinavir/ritonavir. The US company that first developed remdesivir applied for ‘orphan drug’ status in the US – a decision that would have granted it seven years of market exclusivity.
However optimistically the world may like to believe that pharmaceutical giants are racing to be the vaccine-inventor for humanitarian aspects, it is in actuality, the intellectual property(IP) rights which acts as the incentivising force for the giants to even be a part of the race. However, in this crisis, it is significant to temporarily place the economic interests secondary to humanitarian concerns.
Intellectual property mechanisms like Voluntary Licensing might not prove to be an efficient tool in ensuring easy access to the life-saving vaccine because of their discretionary nature and profit-driven choices of pharma giants. However, even elimination of the aspect of ‘choice’ does not ensure a viable solution. Compulsory licensing emanates from Articles 8(1), 8(2), 31 and 32 of the TRIPS Agreement. It allows governments to license an existing patentee’s rights to a third party, irrespective of former’s consent, in order to provide access to innovations to address public health emergencies. However, this mechanism de-incentivises patent holders from increasing investments towards a particular innovation, due to the fear of the future loss of exclusive rights in their invention.
An innovative solution of ‘patent pool’ has been in discussion at the global forum. It is a voluntary arrangement between multiple patent owners, which involves the mutual exchange of potential rights, licenses and techniques. This can be used by governments and research centers to collaborate with one another to test the efficacy of vaccines that would involve the conjunct use of two or more different patented products. There is a renewed scope toward third-party licensing, transparency, negotiations in equitable pricing and royalty-distribution avenues. This might present a comparatively feasible solution which ensures public accessibility as well as preserves individual interests to some extent. However, there still needs to be a formulation of a concrete global framework as even this mechanism is not completely sound due to its dependence on countries’ discretion .
This discourse highlights the imminent need of premeditation of a global strategy which might prevent inequitable distribution of vaccines and ensure that humankind is not put at stake in fulfilment of economic interests.
4. Nations on the fence
Amidst all of this, deliberations and commitments over global cooperation have been in consideration since the start of the pandemic. However, it might be easier said than done. In absence of an International game plan, nations might struggle in following up on the spirit of ‘Universal brotherhood’.
4.1. Economic nosedive
Coronavirus has been more than successful in bringing down world economies into the abyss. Countries have witnessed an all time-high in the unemployment graphs; A report by the Organisation for Economic Cooperation and Development(OECD) shows that the unemployment in OECD countries has risen from 5.5% in March to 8.4% in April. Further, the June edition of the Global Economic Outlook Report made a forecast envisioning 5.2% contraction in Global GDP.
These bleak figures exhibit the amount of economic burden that has accompanied the coronavirus pandemic and with a halt in revenue generating activities, the fulfilment of economic obligations has become a herculean task for the government all around the world. Thus, anything which is prioritized on the same plane as vaccines is revival of economy. And in such a bearish period, if a country is investing its last pool of money in developing a vaccine, it surely wouldn’t be willing to sell it for free. Even if it is considered that these countries might, out of the fear of international pressure , try to follow up on their promises, the same can’t be expected from private consortiums. Thus, expecting morality and rationality in such hard economic times would be too idealist to be true.
4.2. Political embargo(s)
In today’s less than ideal world, there does exist political alliances which ultimately governs countries’ decision to engage with each other. If an international framework for distribution of vaccine is not formulated, there is a high probability that such alliances might dictate the countries’ accessibility to the vaccine. This seems perilous, especially in the light of recent international disputes between the leading economies of the world. If one of the rivaling countries invents the vaccine, then in absence of a regulatory mechanism, it might use its position of power to the detriment of the others and establish a geo-political leverage . Preceding this possibility, also lies the threat of ‘Vaccine nationalism’. Countries, even before the invention of vaccine has started acting in an nationalistic manner, which is clearly evident by the “America first” policy, under which U.S has struck a $1.95 billion deal with Pfizer and a German biotech company to purchase 100 million doses of a vaccine already under development. As the race to a vaccine intensifies, the worlds of politics, medicine, diplomacy, and economics are closing in on one another. This illuminates the paramountcy of a semblance of International regulation to prevent a situation of utter chaos.
The prevailing International attitude of ‘Dealing with the situation when it arises’, in regard to formulation of a global strategy for ensuring equitable distribution of vaccines is alarming. The summits and declarations, although appealing to the moral conscience, are indeed empty promises, if not followed by concrete actions. In espousing this strategy, global forums fail to take into consideration the fact that outlining a policy after the invention might prove to be nearly impossible, as at that time, the priority would be distribution of vaccines rather than facilitating discussions on how to distribute it. Hence, inaction during this time would prove to be the last nail in the coffin.
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