This opinion applies to the full range of diagnostics, medications, vaccines, therapeutics and other relevant health products required for the containment, prevention and mitigation of COVID-19. In short, it sets out the international human rights obligations of States to desist from acting to impede or frustrate the negotiations around the COVID-19 TRIPS Waiver. The conclusion is that those States currently working to prevent the waiver at the World Trade Organization are WTO are acting in breach of their obligations to protect the rights to health, life, equality and science.


Rights to Health, Life and Science:

Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the ‘right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (right to health) and obliges States Parties to take the steps necessary for ‘the prevention, treatment and control of epidemic, endemic, occupational and other diseases’ and the ‘creation of conditions which would assure to all medical service and medical attention in the event of sickness.’ Article 6 of the International Covenant on Civil and Political Rights (ICCPR) protects the right to life of every human being, requiring States to take measures to ensure health care essential to life without delay.  

The COVID-19 pandemic, which threatens life and health, engages the obligations of the State Parties to ICESCR and/or ICCPR.  The rapid development of effective COVID-19 vaccines also engages the right to ‘enjoy the benefits of scientific progress and its applications’, ‘the right to science’ in Article 15  of the ICESCR. Moreover, ‘provid[ing] immunization’ against ‘major infectious diseases’, such as COVID-19  is a minimum core obligation of ‘immediate effect’.  
Regulation of Businesses.

The range of measures necessary for States to meet their minimum core obligations and realize the rights to life and health include effective regulatory measures to ensure that private actors, such as pharmaceutical companies, comply with their own responsibilities to respect human rights including the right to health.  The UN Committee on Economic, Social and Cultural Rights (CESCR) has stressed that companies should ‘refrain from invoking intellectual property rights in a manner that is inconsistent with the right of every person to access a safe and effective vaccine against COVID-19’.  The CESCR has explained that ‘ultimately, intellectual property is a social product and has a social function and consequently, States parties have a duty to prevent unreasonably high costs for access to essential medicines […] from undermining the rights of large segments of the population to health’.  

Non-discrimination:

Obligations in terms of all human rights must be performed without discrimination on any prohibited grounds. States Parties are required to take proactive steps to ensure substantive equality for marginalised groups and individuals,  and to prohibit discrimination on the basis of one or more grounds of discrimination.  The CESCR has reiterated in the context of the COVID-19 pandemic that States parties must prioritize the fulfilment of human rights obligations relating to persons from marginalized and disadvantaged groups as they are disproportionately affected.

International Cooperation:

State Parties to ICESCR have undertaken to realize the rights under it ‘through international assistance and co-operation, especially economic and technical’.  At the very least, States must ‘facilitate access to essential health facilities, goods and services in other countries wherever possible and provide the necessary aid when required.’,  They must also seek to ‘influence […] third parties by way of legal or political means’ to ensure the full realisation of the right to health across the world,  ‘including by using their voting rights as members of different international institutions and organisations’ and if necessary through the ‘development of further legal instruments’.  There is a ‘special responsibility’  on high-income States to cooperate internationally by working with low and middle-income States to achieve the prevention, control and treatment of epidemic diseases such as COVID-19.

Human Rights Obligations of WTO Member States:

Over 85% of the Member States of the World Trade Organization are also States Parties to ICESCR and ICCPR. Their obligations to realize the rights to life and health in the face of a global pandemic without discrimination and through international cooperation must inform their conduct at the WTO. Membership of the WTO necessitates accession to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The CESCR has highlighted that ‘the current restrictions imposed by the intellectual property rules in the TRIPS Agreement make it very difficult to achieve the international cooperation needed for the massive scale up’  needed to ensure universal access to diagnostics, medications, vaccines, therapeutics and other relevant health products to prevent, treat and control COVID-19.


The TRIPS Waiver and Human Rights:

Over 100 of the Member States of the WTO have publicly supported the proposal by India and South Africa that there should be a waiver of sections 1, 4, 5 and 7 of Part II as well as Part III of the TRIPS Agreement, at the TRIPS Council.   The “TRIPS Waiver” would ensure that companies and other holders of intellectual property in respect of the full range of diagnostics, medications, vaccines, therapeutics and other relevant health products required for the containment, prevention and mitigation of COVID-19 do not prevent the realisation of the rights to health, life, equality, and science for all. The WTO Agreement explicitly contemplates the possibility of such time-limited waivers.  Moreover, there is precedent for a waiver in response to the widespread and uncontrolled outbreak of a disease, in the form of the WTO General Council’s decision to implement paragraph 6 of the Doha Declaration. The Doha Declaration in respect of public health was adopted by the Ministerial Conference, as a result of the HIV/AIDS epidemic in Southern Africa in 2001.  There are in fact many precedents for WTO waivers including in the area of intellectual property.


Conclusion: States must desist from obstructing the COVID-19 TRIPS waiver:

The proposed TRIPS waiver should be understood as an effort by the States proposing and supporting the waiver to comply with their human rights obligations in terms of the rights to health, equality, scientific benefits and life by initiating necessary coordination and solidarity in line with their obligations relating to international assistance and cooperation. Conversely, those States actively opposing or otherwise blocking or inhibiting international agreement at the WTO in respect of the waiver must be understood as contravening their obligations to respect and fulfil the same human rights.  Further, by failing to take measures to effectively regulate private actors in health operating on a multinational level where their operations compromise access to COVID-19 diagnostics, medications, vaccines, therapeutics and other relevant health products, States contravene their obligations to protect human rights.


(See executive summary with citations here: https://www.dropbox.com/s/nk2a15vieskkk5c/Summary%20of%20Expert%20Opinion%208%20Nov.pdf?dl=0)

(See full text with citations here: https://www.dropbox.com/s/6k6i3ew9h958w7v/Expert%20Legal%20Opinion%20%208%20Nov%20.pdf?dl=0)