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Why the United Nations is Not the Ideal Forum for Business and Human Rights: The UNGPs and the Right to COVID-19 Vaccine Access in the Global South

Published online by Cambridge University Press:  22 June 2021

Michael A. SANTORO Open the ORCID record for Michael A. SANTORO [Opens in a new window]
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Abstract

The research and development leading to the discovery and distribution of safe and effective COVID-19 vaccines demonstrated the indispensable nature of the pharmaceutical industry. While governments played an important role in financing these efforts by prepaying for dosages, it was private industry that delivered the scientific and technical miracles. At the same time, because of vaccine nationalism and hoarding, citizens of the global south have inadequate access to vaccines. This is a moral and human rights tragedy for which governments, not the pharmaceutical industry, are primarily responsible. This article argues that, as illustrated by humanitarian disaster of inadequate vaccine access in the global south, the failure of the UNGPs to adequately address the paramount role of government in human rights violations, even when there is shared responsibility with business, is a systemic failure that makes the United Nations an inappropriate forum for addressing business and human rights issues.

Keywords

UNGPsCOVID vaccinesGlobal SouthPharmaceutical industryHunt GuidelinesHuman right to health
Type
Scholarly Articles – Special Issue on “BHR Landscape after 10 years of the UNGPs: An Assessment”
Information
Business and Human Rights Journal , Volume 6 , Issue 2: Special Issue: BHR Landscape after 10 years of the UNGPs: An Assessment , June 2021 , pp. 326 - 335
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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Footnotes

Conflicts of interest: The author declares none.

*

Santa Clara University – Management and Entrepreneurship, Santa Clara, CA, USA.

‡

I am grateful to Caroline Glaser for her excellent research assistance, and to the Bonavero Institute of Human Rights, University of Oxford Faculty of Law for the opportunity to present an early version of the research on vaccine development.

References

1 Duke Global Health Innovation Center, ‘The Race for Global Covid-19 Vaccine Equity’, Launch & Scale Speedometer (2020), https://launchandscalefaster.org/covid-19 (accessed 18 April 2021).

2 ‘1998: Big Pharma versus Nelson Mandela’, MSF Access Campaign (20 February 1998), https://msfaccess.org/1998-big-pharma-versus-nelson-mandela (accessed 18 April 2021).

3 Duke Global Health Innovation Center, ‘Vaccine Procurement’, Launch & Scale Speedometer (19 March 2021), https://launchandscalefaster.org/covid-19/vaccineprocurement (accessed 18 April 2021). Paul Schemm and Jennifer Hassan, ‘WHO Chief Warns of “Catastrophic Moral Failure” as Rich Countries Dominate Vaccine Supply’, The Washington Post (18 January 2021), https://www.washingtonpost.com/world/who-chief-warns-of-catastrophic-moral-failure-as-rich-countries-dominate-vaccine-supplies/2021/01/18/033644a0-5978-11eb-a849-6f9423a75ffd_story.html (accessed 5 June 2021).

4 Jessie Yeung and Eshra Mitra, ‘The world’s biggest vaccine producer is running out of Covid-19 vaccines, as second wave accelerates’, CNN (18 April 2021), https://www.cnn.com/2021/04/17/india/covid-vaccine-shortage-covishield-covaxin-intl-hnk-dst/index.html (accessed 18 April 2021).

5 ‘Access to COVID-19 Tools Funding Commitment Tracker’, World Health Organization (28 May 2021), https://www.who.int/publications/m/item/access-to-covid-19-tools-tracker (accessed 5 June 2021).

6 Carl Zimmer, Johnathan Corum and Sui-Lee Wee, ‘Coronavirus Vaccine Tracker’, The New York Times (23 March 2021), www.nytimes.com/interactive/2020/science/coronavirus-vaccine-tracker.html (accessed 18 April 2021).

7 Kayla Rivas, ‘Uneven Global COVID-19 Vaccine Supply Could Have a “Deadly Effect”, Red Cross Warns’, Fox News (4 February 2020), www.foxnews.com/health/uneven-global-covid-19-vaccine-supply-could-have-deadly-effect-red-cross-warns (accessed 18 April 2021).

8 Global News Podcast, ‘WHO criticises EU over Covid vaccine export controls’, BBC News (31 January 2021), https://www.happyscribe.com/public/global-news-podcast/who-criticises-eu-over-covid-vaccine-export-controls (accessed 18 April 2021).

9 See, e.g., ‘Global Equitable Access to COVID-19 Vaccines Estimated to Generate Economic Benefits of at least US$ 153 billion in 2020–21, and US$ 466 Billion by 2025, in 10 Major Economies According to New Report by the Eurasia Group’, World Health Organization (3 December 2020), https://www.who.int/news/item/03-12-2020-global-access-to-covid-19-vaccines-estimated-to-generate-economic-benefits-of-at-least-153-billion-in-2020-21 (accessed 18 April 2021).

10 This remainder of this section briefly summarizes the highlights of a more extensive discussion of the human rights obligations of drug companies which can be found at Michael A Santoro and Robert Shanklin, ‘Human Rights Obligations of Drug Companies’ (2020) 19:5 Journal of Human Rights 557–567.

11 Some have argued that constitutional litigation in national courts represents a promising avenue for establishing the right to healthcare; Sofia Gruskin and Bernard Dickens, ‘Human Rights and Ethics in Public Health’ (2006) American Journal of Public Health 1903–1905; Varun Gauri and Daniel Brinks (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge: Cambridge University Press, 2008).

12 Universal Declaration of Human Rights, (adopted on 10 December 1948), art 25.

13 Paul Hunt and Rajat Kholsa, ‘Are Drug Companies Living Up to Their Human Rights Responsibilities? The Perspective of the Former United Nations Special Rapporteur (2002–2008)’ PLOS Medicine (28 September 2010), https://journals.plos.org/plosmedicine/article?id=10.1371/journal.pmed.1000330 (accessed 19 April 2021).

14 Suerie Moon, ‘Respecting the Right to Access to Medicines: Implications of the UN Guiding Principles on Business and Human Rights for the Pharmaceutical Industry’ (2013) 15:1 Health and Human Rights Journal E32–43.

15 ‘Essential Medicines and Health Products’, World Health Organization, https://www.who.int/medicines/services/essmedicines_def/en/ (accessed 19 April 2021).

16 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011), Principle 11.

17 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’, A/HRC/17/31 (21 March 2011), Principle 13(b).

18 Ibid.

19 It should also be noted that a group of human rights experts, organized by the Office of the UN’s High Commissioner for Human Rights, issued a strong and timely statement on the human right to vaccine access in November 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26484&LangID=E and recmmendations

20 Some scholars have suggested alternative ways to incentivize drug discovery and innovation. Thomas Pogge, Matthew Rimmer and Kim Rubenstein (eds.), Incentives for Global Public Health: Patent Law and Access to Essential Medicines (Cambridge: Cambridge University Press, 2010). See also Paul Hunt, ‘Interpreting the International Right to Health in a Human Rights-Based Approach to Health’ (2016) 18:2 Health and Human Rights Journal 109–130. Moreover, a number of human rights scholars have criticized the ‘neo-liberalization’ of health, and have questioned the inevitability of the trade-off between innovation and health access; Audrey R Chapman, Global Health, Human Rights, and the Challenge of Neoliberal Policies (Cambridge: Cambridge University Press, 2016); Alicia Ely Yamin, When Misfortune Becomes Injustice: Evolving Human Rights Struggles for Health and Social Equality (Stanford: Stanford University Press, 2020); Alicia Ely Yamin and Paul Farmer, Power, Suffering, and the Struggle for Dignity: Human Rights Frameworks for Health and Why They Matter (Philadelphia: University of Pennsylvania Press, 2017).

21 A Santoro, Michael and Shanklin, Robert, ‘Human Rights Obligations of Drug Companies’ (2020) 19:5 Journal of Human Rights 557–567 Google Scholar.

22 Griffin Riley, ‘Pfizer CEO Says Lower Income Countries Didn’t Order Vaccines’, Bloomberg (7 May 2021), https://news.bloomberglaw.com/health-law-and-business/pfizer-ceo-says-lower-income-countries-didnt-order-vaccines (accessed 9 May 2021).

23 The United States President’s Emergency Plan for AIDS Relief, https://www.state.gov/pepfar/

24 When the UNGPs were first promulgated, an easy way emerged to tell apart lawyers from ethicists. The lawyers exclaimed ‘Guiding? We must turn them into binding law!’, whereas the ethicists exclaimed ‘Principles? These don’t have any moral justification or clarity!’.

25 Daniel Stone, ‘Amazon Tribes Stand Up for Their Survival’, National Geographic (22 June 2017), https://www.nationalgeographic.com/photography/article/amazon-river-dams-displacement-indigenous-elkaim (accessed 19 April 2021).

26 Richard Price, ‘Saramaka People v Suriname: A Human Rights Victory and its Messy Aftermath’, Cultural Survival (29 July 2012), https://www.culturalsurvival.org/news/saramaka-people-v-suriname-human-rights-victory-and-its-messy-aftermath (accessed 19 April 2021).

27 Justin Worland, ‘What to Know About the Dakota Access Pipeline Protests’, TIME (28 October 28 2016), https://time.com/4548566/dakota-access-pipeline-standing-rock-sioux/ (accessed 19 April 2021).

28 For a recent overview of the human rights situation in China, see Michael A Santoro and Robert Shanklin, A China Business Primer: Ethics, Culture and Respect (Routledge Press, 2021), especially chapter 4.

29 Recently, a group of human rights experts, organized by the Office of the UN’s High Commissioner for Human Rights, issued a diplomatically worded statement and written to the Chinese government to call for it to assure compliance by private companies with the UNGPs with regard to the human rights of Uighurs. While this statement suggests some recognition of the connection between state and business violation of human rights, it is, however, safely stated as a criticism of the state’s failure to oversee companies. This is a curious emphasis given the Chinese government’s violation of the human rights of Uighurs, but also an emphasis that is consistent with and highlights the shortcomings of the UNGPs in addressing the role of states in human rights abuses. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=26957&LangID=E

30 Michael A Santoro, ‘Business and Human Rights in Historical Perspective’ (2015) 14:2 Journal of Human Rights 155–161.