Paige Richardson, Associate Member, University of Cincinnati Law Review
In December of 2020, almost a year after the start of the COVID-19 pandemic, the United States authorized use of the first COVID-19 vaccine. There are now multiple versions of COVID-19 vaccines available throughout the world. However, past pandemics and epidemics have shown that even once treatments and vaccinations become available, there is a severe inequitable distribution of resources, resulting in differing levels of access to treatment for different populations. This is true both within and among nations. As a result, international agreements and declarations have focused, at least partially, on the importance of affordable and accessible medicine. For example, Agreements on Trade-Related Aspects of Intellectual Property Rights (“TRIPS agreements”) through the World Trade Organization (“WTO”), often contain provisions allowing developing countries to manufacture off-brand medicines at lower prices.
Similar efforts have emerged as COVID-19 vaccines have been approved. The World Health Organization (“WHO”) has created a Fair Allocation Mechanism through its COVAX team, which promises to create a framework of equitable distribution. However, equitable distribution is more than just a moral duty. It is a legal obligation that, in many cases, has not been met.
II. International Public Health and Human Rights
The right to public health has been put forth in various international declarations and agreements. The Universal Declaration of Human Rights (“UDHR”) declares in Article 25, “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care . . .” The UDHR is not itself binding; however, most nations and international organizations, the United States included, recognize the UDHR as customary international law (“CIL”). Customary international law is comprised of international standards and norms recognized so universally that they are binding on nations absent traditional covenants, treaties, and agreements.
In addition, the public health obligations set forth in the UDHR are codified in the International Covenant on Economic, Social and Cultural Rights (“ICESCR”), which is a binding agreement on member-states. Article 12 of the ICESCR states, “The State Parties to the present Covenant recognize the right of the everyone to the enjoyment of the highest attainable standard of physical and mental health.” Further, “The steps to be taken by the State Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:… (c) the prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
The 172 countries that have signed and ratified the ICESCR are therefore bound to provide treatment and medical services to the best of their abilities. The COVID-19 pandemic has brought to light not only wealth and resource disparities among countries, but also discriminatory barriers to medical accessibility within countries.
III. COVID-19 and The Issue of Equitable Distribution
Even with WHO partner-states paying into the COVAX equitable distribution system, severe issues of inequality persist within and among nations. A recent New York Times article has disclosed the failures of the COVAX system. Despite paying into an equitable sharing system through COVAX, rich and developed countries also struck independent deals with pharmaceutical companies resulting in a stockpiling of vaccines in developed countries. At the same time, 67 countries, mainly in Africa, have no access to vaccines. Those same countries stockpiling vaccine resources, mainly countries in Europe, will likely vaccinate all of their citizenry in under a year, while another 148 countries are on pace to take significantly longer. This distribution inequality will have long-lasting political, economic, and public health impacts, given that an effective response to the pandemic requires speed and global herd immunity.
In addition to the broad inequities, there are significant discriminatory barriers resulting in unequal access to vaccinations within countries. For example, in China, officials are refusing to vaccinate the at-risk elderly populations, a possible result of ageist policies. Palestinians face similar discrimination from the Israeli government. Israel has been a model example of vaccination success to the point that they are giving their vaccine supplies to allied nations. However, this vaccination success does not include Palestinian populations, who are 60 times less likely to receive a vaccination in the West Bank than Israelis. As an occupying power, Israel is not only bound to provide medical access to Palestinians by its obligations under the ICESCR, but also by the Geneva Conventions. The United States has also recorded racial disparities in access to vaccinations. In the United States, Black people make up a proportionately larger percentage of healthcare and frontline workers. Despite that group being fast tracked for vaccination, the Black population as a whole is being vaccinated at slower rates than white populations.
Though most countries in the world are obligated to provide medical access and public health services under the UDHR and the ICESCR, there are global and national barriers to equitable COVID-19 treatments. On a global level, fair allocation efforts have been undermined by the stockpiling of vaccines. The pandemic has also highlighted racism and other discriminatory barriers to medical accessibility within countries. The result is an inadequate pandemic response that fails to meet moral and legal international obligations.
Though the ICESCR is a binding international agreement, enforcement of those obligations can be difficult. The ICESCR’s main enforcement mechanism is the Committee on Economic, Social, and Cultural Rights (“CESCR”), which publicly reports member nation’s progress on various social, economic, and cultural criteria. Violations can also be brought to other United Nations organs, such as the Office for the High Commissioner on Human Rights. However, recourse for ESCR violations can be more difficult to obtain as there is a long history of nations, such as the United States, not recognizing ESCR violations as equally justiciable as civil and political rights. Redress of this nature would also take time that pandemic victims do not necessarily have.
In conclusion, though most nations are bound by the ICESCR to provide fair access to public health services, the COVID-19 response has highlighted ongoing issues of accessibility. Rich countries, particularly those in Europe, have taken far more than they will ever need, leaving poorer countries with no access to vaccines. In addition, immutable characteristics such as race continue to affect the health and medical accessibility of those particular populations. In order to efficiently and effectively eradicate the COVID-19 threat, countries must abide by their moral and legal international obligations.
 Pfizer-BioNTech COVID-19 Vaccine, FDA (Feb. 3, 2021), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/pfizer-biontech-covid-19-vaccine.
 See i.e., Sergio Galletta and Tommaso Giommoni, Pandemics and Inequality, VOXEU (Oct. 3, 2020), https://voxeu.org/article/pandemics-and-inequality.
 See e.g., Allison McCann and Lazaro Gamio, Who Can and Can’t Get Vaccinated Right Now, New York Times (Mar. 19, 2021), https://www.nytimes.com/interactive/2021/03/19/world/covid-vaccine-inequality.html.
 See i.e., Agreement on Trade-Related Aspects of Intellectual Property Rights (unamended): Uruguay Round, WTO (Apr. 15, 1994), https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm.
 Fair allocation mechanism for COVID-19 vaccines through the COVAX Facility, WHO (Sept. 9, 2020), https://www.who.int/publications/m/item/fair-allocation-mechanism-for-covid-19-vaccines-through-the-covax-facility.
 Universal Declaration of Human Rights, art. 25, https://www.un.org/en/about-us/universal-declaration-of-human-rights.
 Customary International Law, Legal Information Institute, https://www.law.cornell.edu/wex/customary_international_law.
 International Covenant on Economic, Social and Cultural Rights, art. 12(1), Jan. 3, 1976, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.
 Id. at art. 12(2)(c)(d).
 International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.
 McCann and Gamio, supra note 3.
 Matthias Kennes, Palestinians left out of Israel’s COVID-19 vaccination success story, DOCTORS WITHOUT BORDERS (Feb. 22, 2021), https://www.doctorswithoutborders.org/what-we-do/news-stories/story/palestinians-left-out-israels-covid-19-vaccination-success-story.
 Carla K. Johnson; Angeliki Kasanis; Kat Stafford, AP Analysis: Racial disparity seen in US vaccination drive, AP NEWS (Jan. 30, 2021), https://apnews.com/article/race-and-ethnicity-health-coronavirus-pandemic-hispanics-d0746b028cf56231dbcdeda0fba24314.
 Human Rights Enforcement Mechanisms of the United Nations, ESCR-Net, https://www.escr-net.org/resources/human-rights-enforcement-mechanisms-united-nations.
 Justiciability of Economic, Social, and Cultural Rights: Should There be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?, ESCR-Net, https://www.escr-net.org/resources/justiciability-economic-social-and-cultural-rights-should-there-be-international.