Document Type

Article

Publication Date

2021

Keywords

vaccine, COVID-19, nationalism, international law, contracts, sovereignty, viral sovereignty, H1N1, influenza, Ebola, pandemic, Pandemic Influenza Preparedness Framework, World Health Organization, COVAX, United States, China, India, Russia

Abstract

The COVID-19 pandemic has triggered a global vaccine race, and distributive questions about which countries will receive scarce doses and under which conditions pervade international law and diplomacy. As vaccines are distributed worldwide throughout 2021, this essay analyzes the problem of vaccine access as a critical question in the literature on sources of international law and the influence of those sources. As with past pandemics, research and development capacity is largely concentrated in the wealthy countries of Europe and North America with growing capabilities in East and South Asia. Over the course of 2020, some governments exercised extreme forms of “vaccine nationalism,” refusing to share, or contemplate sharing, COVID-19 vaccines or related knowledge with any populations but their own. Other governments balanced the needs of their domestic populations with regional or global diplomatic objectives. Within this latter category, some governments shared bilaterally as a means of furthering local or international influence while others participated in a multilateral sharing mechanism coordinated by international organizations. Of course, as with past pandemics, the great majority of governments were left without vaccine development and manufacturing capacity, possessed few resources with which to procure vaccines under prevailing commercial circumstances, and were therefore vulnerable and open to overtures from both bilateral and multilateral acquisition sources.

This essay aims to explain this unique constellation of vaccine development and access from the lens of international law, focusing on the nascent global governance regime for vaccine research, development, and distribution. As wealthy governments used bilateral contracts, Advanced Purchase Agreements (APA), to secure vaccines for populations in the world’s richest countries, those in poor countries remained at risk. Yet both multilateral and bilateral mechanisms emerged that prioritized vaccine access to those populations, an occurrence arguably at odds with realpolitik conceptions of how and why governments assess their legal options during international emergencies. We explore this dissociation between global public health imperatives and nationalist responses to the pandemic within the frameworks of “vaccine diplomacy,” “vaccine nationalism” and “viral sovereignty.” The essay ultimately argues that, over the course of the last thirty years, a global regime of vaccine access has emerged and, while not yet cohesive or uniform, it has manifested common characteristics through two vaccine-preventable global public health emergencies: H1N1 pandemic influenza and COVID-19. A third, more regional epidemic, Ebola, demonstrated similar characteristics. Even more importantly, this regime has been formed and implemented by international organizations, rather than coordinated through individual governments.

Within the broader context of international law scholarship, the essay contributes a significant case of international organizations as international law-makers. The essay focuses on two international agreements — the 2011 Pandemic Influenza Preparedness Framework (PIP), and the 2020 COVAX Vaccines Pillar of the ACT Accelerator (COVAX) — neither of which is a treaty, neither of which codifies customary international law as it would be conventionally defined, but both of which have been negotiated and implemented by international organizations. These organizations include specialized U.N. agencies like the World Health Organization and UNICEF, as well as international organizations technically formed under national law, but which include a broader set of decision-makers, including governments, like CEPI and GAVI. Each agreement represented a legal solution to disputes between high-income countries seeking to hoard medicines for their citizens, and low-income countries seeking greater shares of vaccines manufactured in high-income countries. Yet realizing those agreements depended on the coordinating and facilitating efforts of international organizations, rather than by individual or collective action by governments.

The importance of this development is significant not only in the context of sources of international law, but in the relative influence of those sources. “Vaccine diplomacy”, the efforts of primarily China, India, and Russia to use access to COVID-19 vaccines for regional or international influence, has been fundamentally shaped by international organizations advocating an international norm of vaccine access codified in multilateral legal instruments. COVAX has conditioned the diplomatic outcomes China, India, and Russia may realize through vaccine dipomacy.

The international norm of vaccine access did not emerge because of altruism or self-interest. Rather, it represents a brokered institutional compromise between vaccine nationalism and “viral sovereignty,” the proprietary claims over pathogens by mainly biodiverse countries that limit access to the genetic resources necessary for the development of many therapeutics and vaccines. Without that access, there may be no vaccines and without vaccines there may be no vaccine nationalism. This balance has resulted in consecutive international legal arrangements, mostly facilitated by the World Health Organization, that indicate an interest in collaboration, division of gains from trade, and sustained governance structures: the Pandemic Influenza Preparedness Framework and COVAX. The recurrence of these legal arrangements suggests that in order to save the transaction costs generated by repeated development of ad hoc structures that centralize vaccine distribution, that a permanent facility may be developed. One possibility for such a facility is the Pandemic Influenza Preparedness Framework, adapted to become an all- or most-pathogen sharing international organization. A second possibility has been introduced in light of the COVID-19 pandemic: a Pandemic Treaty that establishes the terms under which pandemic vaccines will be developed and shared in the future.

Whatever alternative materializes, this essay is the first to describe the phenomena that have driven the development of international vaccine sharing mechanisms, identify the international organizational forces that explain the phenomena, and explain how international organizations may facilitate international cooperation before, during, and after global crises.

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