Decolonising human rights: how intellectual property laws result in


The COVID-19 pandemic is one of the biggest health crises that the world has faced in the last century. While many COVID-19 vaccines have been rapidly developed, offering hope to billions, many countries face a herculean task in accessing them, in part because of restrictive intellectual property (IP) laws. This is because vaccine patents, which are a form of IP rights, lead to production monopolies that contribute to increased prices and decreased access. This injustice has been described as ‘vaccine apartheid’ because it creates stark disparities in vaccine access between countries in the Global North and those in the Global South, as well as between elites and others within countries.

In this article, we show that the existing application of IP law exacerbates already severe global and domestic inequalities and prevents many countries in the Global South from progressively realising the right to health for all of their people. This, in turn, amounts to a violation of states’ human rights obligations to respect, protect and fulfil the right to health. We suggest that the best way to address these structural global inequities is through a decolonised approach to human rights in global health. Decolonisation refers to the undoing of colonial rule over subordinate countries but has taken on a wider meaning as the ‘freeing of minds from colonial ideology’, in particular by addressing the ingrained idea that to be colonised was to be inferior. Decolonisation enables us to critique positions of power and dominant culture.1 In global health, decolonisation is a political tradition rooted in Global South struggles against colonisation, exploitative ‘development’ agendas, apartheid and access to public health, including inequity in access to essential medicines.2 Calls to decolonise global health are not new, and indeed they have gained urgency due to the power asymmetries illustrated by the COVID-19 crisis.3 4 In this paper, a ‘decolonial’ framing of human rights in global health enables us to focus on ways in which structural or systemic issues reproduce inequalities and, we hope, can help to galvanise more effective human rights struggles from below.5-8 In order to do so, we call for reparative redistributing of resources in global solidarity, shifting vaccine access from a charitable plea to a legal obligation, increasing manufacturing capacity in the Global South and clarifying human rights responsibilities of pharmaceutical corporations themselves.

International and domestic responses to COVID-19, including in respect of vaccine access, have been highly politicised.9 Thus, a decolonised approach allows us to consider ways in which the entire patent regime—and existing interpretations of international human rights law that defer to its applications—commodifies essential medicines, undermining universal health coverage. In this article, we illustrate how, beyond making essential medicines unaffordable for countries in the Global South, the commodification of vaccines is pushing countries into greater indebtedness and reproducing national inequalities through dual-track systems that discriminate against poorer and marginalised groups, thereby making it harder for these countries to achieve the realisation of the right to health for all.

The commodification of essential medicines is the consequence of the prevalent system of global capitalism that allows manufacturers and states to value financial profit over human life. In this paper, we define neocolonialism to mean that although many global South States are outwardly independent and sovereign in many respects, they remain beholden both to states in the Global North and increasingly to multinational corporations.9 This relationship is exemplified in the case of IP rights protections, which low and middle-income countries (LMIC) are pressured into adopting and respecting in order to enter into bilateral or regional free trade or investment agreements with high-income countries and/or receive investments and loans from global financial institutions.10

In this paper, we first outline what a human rights approach to realising access to COVID-19 vaccines entails when a decolonising lens is not used. We illustrate the limitations of this approach in our discussion of the competing IP framework which governs IP rights and stymies the human rights frameworks for access to essential medicines such as vaccines. We reveal the resulting inequalities both between countries and within countries. Finally, we outline how a decolonised approach could improve access to vaccines both, for this crisis and also for future crises.

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