Apartheid and International Law

Apartheid has historically been used to refer to “policies and practices of racial segregation and discrimination”¹⁹ that are “committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.”²⁰ The Convention on the Elimination of All Forms of Racial Discrimination (CERD) defines apartheid as “governmental policies based on racial superiority or hatred,”²¹ and connotes a particularly egregious form of racial discrimination that states have agreed to prevent, prohibit and eradicate.²² Further, the Convention on the Suppression and Punishment of the Crime of Apartheid provides that state parties are to “adopt any legislative or other measures necessary to suppress as well as to prevent any encouragement of the crime of apartheid.”²³

Apartheid is a crime against humanity, which is subject to individual criminal responsibility.²⁴ No statute of limitations is supposed to be applicable for “inhuman acts resulting from the policy of apartheid.”²⁵ The gravity of apartheid in international law is reflected not only in the stand-alone instrument aimed at its suppression,²⁶ but also, in the Rome Statute’s continued criminalization of apartheid. The International Law Commission regards the prohibition against apartheid as a peremptory norm and has indicated that acts of apartheid constitute “a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being.”²⁷ The Commission goes on to state that the prohibition against apartheid exists “in widely ratified international treaties and conventions admitting of no exception.”²⁸

The Rome Statute defines apartheid as inhumane acts “committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”Reference Dugard and Reynolds²⁹ In order to differentiate apartheid from other forms of prohibited discrimination, commentators have honed in on the “systematic, institutionalized, and oppressive character of the discrimination involved, and the purpose of domination that is entailed. It is this institutionalized element, involving a state-sanctioned regime of law, policy, and institutions, that distinguishes the practice of apartheid.”³⁰ And, any form of institutionalized discrimination would inherently conflict with non-discrimination provisions reflected in international human rights law.³¹ Thus, apartheid does not only touch and concern international criminal law, but also has implications for international human rights law.

Vaccine Apartheid and International Law

Certainly, the remarks of the heads of UNAIDS and of the World Health Organization (WHO) featured at the beginning of this commentary,³² are not calling on the 109 state parties of the Apartheid Convention³³ and 123 state parties to the Rome Statute³⁴ to bring criminal prosecutions against individuals accused of acts of vaccine apartheid. Nonetheless, how should we conceive of the relationship between vaccine apartheid, apartheid, and international law?

The Apartheid Convention defines apartheid to include “legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms.”³⁵ The Convention provides a non-exhaustive list of basic human rights and freedoms,³⁶ but does not enumerate the right to health.³⁷ However, the right to the highest attainable standard of health is recognized in the Covenant on Economic, Social and Cultural Rights.³⁸ The Committee on Economic, Social and Cultural Rights, has found that “health is a fundamental human right indispensable for the exercise of other human rights.”³⁹ And, vaccine apartheid certainly creates conditions which prevent the full development of a racial group or groups health.

Yet, must conditions be deliberately created to count as vaccine apartheid?Reference Teitelbaum, Theiss and Boufides⁴⁰ Ideally laws would “constitute the societal building blocks that should enable everyone to lead safe, healthy lives.”Reference Achiume⁴¹ A health justice approach requires a broader analysis beyond intentionality, motive, and the conscious objective of state actors to facilitate apartheid-like conditions. A response rooted in health justice demands consideration of the health outcomes and the lived experience of laws and policies, and not simply focusing on how a law or policy was designed.

Further, E. Tendayi Achiume, the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and related Intolerance has observed that:

Indeed, international human rights law unambiguously acknowledges claims based on disparate impact. For instance, CERD broadly defines racial discrimination to encompass any “distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise … of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”⁴³ Since the international human rights framework permits claims based on effect, the primacy of intentionality is not as essential as it is in some jurisdictions.⁴⁴ International human rights law potentially creates an avenue for redress and destabilizing racialized health inequities. Under CERD, state parties are supposed to “take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.”⁴⁵ The CERD Committee has found that the unequal impact of COVID-19 across and within nations replicates colonial hierarchies and reflects the failure “to redress the effects of racism rooted in slavery, colonialism and apartheid.”Reference Venzke⁴⁶

Seeking Redress for Vaccine Apartheid

This section turns our attention towards the prevention of apartheid-like conditions and places legislative and other intellectual property measures under heightened scrutiny for reform and transformation. The standard assumption is that pharmaceutical companies must charge monopoly prices to recover their investment in research and development.Reference Sunder Rajan⁴⁷ However, many have demonstrated that a market-based monopoly incentive for pharmaceuticals is inadequate for addressing health needs.Reference Vats and Keller⁴⁸ Analysts have deftly shown the significant constraints of a research and development system premised on monopoly rights.Reference Heled, Vertinsky and Brewer⁴⁹ Such an incentive structure, is inclined to narrow in on “lucrative” medical conditions, that pose minimal risks and towards ailments which already have existing effective therapies.Reference Sirleaf⁵⁰ As I articulated elsewhere:

The creation of the international intellectual property regime functioned to expand and increase the US-model of pharmaceutical patent protection globally.⁵² The Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement provides a twenty-year monopoly for pharmaceuticals.⁵³ This regime shifted patent rights from being a national prerogative to an international obligation, with vast public health implications. The Doha Declaration,⁵⁴ and specific provisions in the agreement were meant to create better flexibilities for public health,⁵⁵ or incentivize research and development.⁵⁶ However, these have had limited effect,⁵⁷ given the larger incentive-structure towards profit maximization described above. Moreover, the U.S. and others advance pharmaceutical interests on states in the Global South using restrictive provisions placed in bilateral and regional free trade agreements that have imposed more stringent requirements on countries than required by the TRIPS agreement.Reference Shin⁵⁸

The pharmaceutical industry tends to neglect research and development for vaccines. The COVID-19 pandemic was no exception. The development of several COVID-19 vaccines was due to the significant support of public funding-- various countries negotiated massive buyout contracts with manufacturers using taxpayer money.Reference Kimball⁵⁹ Pharmaceutical companies have not regarded COVID-19 vaccines as a public good. During the pandemic, they were able to exercise their monopoly power to artificially limit supply, by preventing others from accessing the technologies needed to create the vaccines. As a result, this has kept the number of suppliers small and the costs high.⁶⁰ Many of these pharmaceutical companies primarily based in the Global North have amassed substantial amounts due to the monopoly rights provided by the intellectual property regime. Pfizer, for example, reported $9.9 billion in net income, a 78% increase over the second quarter of 2021.⁶¹ Its COVID vaccine accounted for $8.8 billion in revenue for the second quarter, and the company’s 2022 sales guidance for the vaccine is $32 billion.⁶²

Against this background, India and South Africa argued that a “waiver should continue in effect until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.”⁶³ In South Africa’s initial intervention before the World Trade Organization (WTO), it argued that “Ad hoc, non-transparent and unaccountable [vaccine] bilateral deals that artificially limit supply and competition cannot reliably deliver access needed during a global pandemic. These bilateral deals do not demonstrate global collaboration but rather reinforce ‘vaccine apartheid’ and enlarges chasms of inequality.”⁶⁴ South Africa and India modified their proposal in May 2021, to clarify that the waiver they sought for health products and technologies would be limited in scope to COVID-19 prevention, treatment and containment; would only be applicable for three years; and incorporated concerns over continuous mutations and the emergence of new variants.⁶⁵

How we got from these early demands for a People’s Vaccine, available to all, everywhere, free of charge⁶⁶ to the ineffectual intellectual property rights waiver, eventually adopted by the WTO in June 2022, is worth considering. The initial South African and Indian waiver proposal was co-sponsored and endorsed by the African group of states as well as numerous countries in the Global South and some in the Global North. Notably, France and the United States conveyed tepid support for the waiver proposal, with the United States limiting its support to vaccines only.⁶⁷ The U.S. change in position is striking given that “[t]wenty years ago, when Brazil wanted to make its own generic versions of life saving HIV drugs, the US government took legal action” through the WTO’s dispute settlement mechanism.Reference Tasker⁶⁸ The pharmaceutical industry characteristically resisted the waiver proposal along with others primarily based in the Global North, like Canada,⁶⁹ the United Kingdom,Reference Green⁷⁰ and the European UnionReference Okafor and Gathii⁷¹ who — evidenced an incredible lack of international solidarity when it authorized countries to limit exports of vaccines in the midst of the pandemic.⁷²

Those that opposed the waiver proposal argue equitable access to vaccines can be achieved through voluntary licensing and technology transfer arrangements. But, as South Africa forcefully argued at a WTO General Council Meeting, “the model of donation and philanthropic expediency cannot solve the fundamental disconnect between the monopolistic model it underwrites and the very real desire of developing and least developed countries to produce for themselves. The problem with philanthropy is that it cannot buy equality.”Reference Yu and Schoysbo⁷³

The Decision

In June of 2022, after months of negotiations and deliberations the WTO finally reached a ministerial decision.⁷⁴ It provides that “eligible members” may waive intellectual property patents “for the production and supply of COVID-19 vaccines without the consent of the right holder to the extent necessary to address the COVID-19 pandemic,” for five years.⁷⁵ In the same breath, the Decision renders itself virtually meaningless. It defines eligible members as all developing countries, but then stipulates that “[d]eveloping country Members with existing capacity to manufacture COVID-19 vaccines are encouraged to make a binding commitment not to avail themselves of this Decision.”⁷⁶ On its face, the Decision is aimed at boxing out countries like Brazil, China,⁷⁷ and India, which all have significant manufacturing capacity, from supplying vaccines utilizing compulsory licensing. The Decision stipulates that those eligible should “prevent the re-exportation of the products manufactured” under this Decision and shall “prevent the importation into, and sale in, their territories of products manufactured” under the Decision, but “diverted to their markets inconsistently with its provisions.”⁷⁸ The Decision attempts to temper this language by specifying that in “exceptional circumstances,” an eligible Member may “re-export COVID-19 vaccines to another eligible Member for humanitarian and not-for-profit purposes.”Reference Thomlinson⁷⁹ The Decision seemingly makes it easier for those in the Global South to issue compulsory licenses to manufacture vaccines, but this is a pyrrhic victory given the many restrictions.

Additionally, the Decision is unsatisfactory because one needs more than a patent to bring a vaccine to market. The CEO of Moderna, Stéphane Bancel, made this clear, when he remarked that “If someone wants to start from scratch, they would have to figure out how to make mRNA, which is not in our patents.”⁸⁰ Indeed, when manufacturing biologics like vaccines, it is not simply the formula of the compound that one needs, but rather how to produce it on a wide-scale and ensure that during the production process things are replicated accurately. The original proposal from South Africa and India accounted for this and covers not only patents, but also copyright, industrial designs, and undisclosed information including know-how and trade secrets.Reference Park⁸¹ A company that somehow got access to undisclosed information and used industrial design, know-how and/or trade secrets without authorization to produce vaccines, would run the risks of costly legal action before the WTO or unilateral sanctions as often occurred with the AIDS pandemic. As noted earlier, the U.S. often threatened to close off its market to countries who fall foul of its interpretation of what the international intellectual property regime requires for protecting patents for antiretrovirals for AIDS.⁸²

Moreover, the Decision failed to address other COVID-19 health products and technologies as South Africa and India’s proposal called for. Instead, in December of 2022, members are to decide whether to extend the decision “to cover the production and supply of COVID-19 diagnostics and therapeutics.⁸³ Waiting to decide on this is problematic for several reasons. First, the currently available antiviral drugs for COVID-19 are most effective when used within the first few days, this small window to take the drugs means that people need to access them quickly and cheaply. Yet, the unaffordable prices enabled by patent protections makes this unfeasible. This creates the current conundrum where the supply of the drugs is limited because the market is tiny, but the market is little because the cost is high. For instance, sales of Pfizer’s COVID-19 treatment Paxlovid amounted to $8.1 billion for the second quarter of 2022, and it expects $22 billion for it 2022 sales guidance from this drug.Reference Vawda, Hassan and Johnson⁸⁴ Furthermore, without access to reliable and easily accessible diagnostic tests, countries will be severely hampered in their COVID-19 response. For the reasons articulated above amongst others, the Decision is wanting.

Aftermath of the Decision

Advocates have decried the Decision as “a massive setback for the cause of global health equity, which will take decades to recover from,” and “a slap in the face for developing countries battling for survival in a rampant pandemic and poor people everywhere.”⁸⁵ Dr. Christos Christou, International President of Doctors Without Borders, has similarly lambasted the decision for its failure:

to offer an effective and meaningful solution to help increase people’s access to needed medical tools during the pandemic, as it does not adequately waive intellectual property on all essential COVID-19 medical tools, and it does not apply to all countries. The measures outlined in the decision will not address pharmaceutical monopolies or ensure affordable access to lifesaving medical tools and will set a negative precedent for future global health crises and pandemics.⁸⁶

Those opposed also think it sets a negative precedent. For instance, the American Intellectual Property Law Association, and other organizations, released a joint statement condemning the decision for undermining the “stability and predictability” of the intellectual property regime and research and development incentives.⁸⁷ Additionally, the Pharmaceutical Research and Manufacturers of America, accused the Biden administration of helping to give “away valuable American technologies to foreign competitors, undermining the millions of American jobs supported by our industry.”Reference Lee⁸⁸ While others continue to view the lack of production facilities and logistical impediments as the core problem and not intellectual property protections.⁸⁹

Some have reached the conclusion that a bad deal is better than no deal. A year and a half passed and “more than five million people died during the WTO membership’s struggle to find a compromise solution.”Reference Sirleaf⁹⁰ While the implementation of the decision will take time to assess, the terms of the decision are not encouraging for reversing vaccine apartheid.

Significantly, this Decision took place and will likely be implemented within a political and economic climate that has prematurely declared victory. The pretense that COVID-19 is over, and policies based on this rationale have predictably been ableist, ageist and racist amongst others. I have expounded on how the racial valuation of diseases, is reflected in responses to the coronavirus, which continue to be informed by “outdated but persistent settler-colonial conventions that have mapped illness and disease on to racialized peoples and certain geographic regions.”Reference Giliomee⁹¹ To be clear, the Global North’s determination to “live with COVID,” is a necropolitical calculation of who must die and suffer from COVID. If the current trajectory is not reversed, this means that extant health inequities from vaccine apartheid will persist and deepen.

Implications of Vaccine Apartheid

There is danger in using apartheid as a metaphor and the potential to denigrate the severity of the experience of apartheid as it is historically and legally understood. Vaccine apartheid departs from the imposition of apartheid in significant ways. In South Africa, apartheid came on the heels of colonial occupation, which dispossessed Black people of land ownership except for in limited areas like homelands and townships. It involved severe restrictions on the free movement of peoples, especially Black South Africans, and required individuals to show passes for passage into White areas.Reference Rai⁹² Apartheid relegated Black South Africans to substandard education, it denigrated cultural and social institutions, and it denied them full citizenship. The above is not exhaustive of the divergences between the lived experience of apartheid, but it is illustrative of the important points of departure from vaccine apartheid.

Even still, it is important to mine the metaphor of vaccine apartheid to clarify how the techniques and tools of apartheid have not been relegated to some distant past. For instance, a common technique of apartheid was severely restricting freedom of movement. Following South Africa’s genomic sequencing of the Omicron variant, instead of being rewarded for tracing and alerting the world to a variant that was already circulating in Europe, the United Kingdom, the United States, the European Union and others were hasty to make decisions informed by “Afrophobia” as the President of Malawi aptly termed it.Reference Mbembé and Meintjes⁹³ Countries in the Global North, were quick to cut off southern African countries and impose a number of unfair travel restrictions targeting Africans more generally. Similarly, the host of travel restrictions that have been imposed that require specific vaccines, or diagnostic tests for entry, function without regard to inequitable distribution of the very same diagnostics and vaccines. These additional travel restrictions render freedom of movement even more cumbersome and difficult than it already was for people from the Global South.

Another common device of apartheid was the creation of new social and spatial relations. Historian Achille Mbembe, clarifies several key aspects of how this was achieved through for instance, the “production of boundaries and hierarchies, zones and enclaves; the subversion of existing property arrangements; the classification of people according to different categories” and resource extraction.Reference Kollewe⁹⁴ Professor Priyamvada Gopal, poignantly explained how these connections continue today:

Her remarks remind us of how European colonizers prioritized defensive measures against contagion from racialized and “diseased” colonial territories when formulating the global health regime.Reference Howard-Jones⁹⁶ The birth of the global health regime was premised on colonial powers coordinating sufficiently restrictive quarantine regulations that would facilitate the unimpeded expansion of imperial trade without exposing their populations in the mother country to diseases from colonial territories.Reference Aloudat, Kirpalani, Davis, Decolonisation and Health⁹⁷ The vestiges of White health as global health continue to inform the present in subtle and unsubtle ways as witnessed with vaccine apartheid.

The enactment of differential rights to differing categories of people is another technique of apartheid. Researchers have observed, “[t]he map of winners and losers in the COVID-19 vaccination race appears almost indistinguishable from the map of European colonialism.”Reference Paremoer⁹⁸ Other scholars have remarked “how 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.’”⁹⁹

A throughline connects the racial and colonial logics that rendered historically subordinated groups expendable in the past.Reference Folkenflik¹⁰⁰ Fatima Hassan, founder, and director of the Health Justice Initiative in South Africa, reflections on this feature of vaccine apartheid are worth quoting at length:

As illustrated above with the analysis of South Africa and India’s waiver proposal, these logics have “replicated themselves in who is entitled to get the vaccine and how property is understood and in who owns the rights to produce the vaccine.”¹⁰² As the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and related Intolerance, powerfully argued, “nations and powerful transnational corporations based within their jurisdictions have monopolized authority to determine ‘who is worth saving’ — and this hierarchical power cannot be unlinked from its colonial origins.Reference Patterson¹⁰³ The capacity to define who matters and who does not, who is disposable and who is not is a defining aspect of vaccine apartheid and is reminiscent of the historical experience of apartheid.