Vial and syringe.

The Pandemic Treaty and Intellectual Property Sharing: Making Vaccine Knowledge a Public Good 

By Ellen ‘t Hoen

The COVID-19 pandemic has laid bare the lack of regulation for the sharing of intellectual property (IP) and technology needed for an effective and equitable response to the crisis.

The Pandemic Treaty (or other legal instrument) scheduled for discussion at the World Health Assembly in the fall of 2021 should focus on establishing the norm that the IP and knowledge needed to develop and produce essential pandemic health technologies become global public goods. It should also ensure predictable and sufficient financing for the development of such public goods.

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Many people together around the world. 3D Rendering.

The Pandemic Treaty as a Framework for Global Solidarity: Extraterritorial Human Rights Obligations in Global Health Governance

By Benjamin Mason Meier, Judith Bueno de Mesquita, and Sharifah Sekalala

Rising nationalism has presented obstacles to global solidarity in the COVID-19 pandemic response, undermining the realization of the right to health throughout the world.

These nationalist challenges raise an imperative to understand the evolving role of human rights in global health governance as a foundation to advance extraterritorial human rights obligations under global health law.

This contribution examines these extraterritorial obligations of assistance and cooperation, proposing human rights obligations to support global solidarity through the prospective pandemic treaty.

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Global connections concept illustration.

21st Century Lawmaking in an Interdependent World

By Caroline E. Foster

A new pandemic instrument should explicitly embrace the three emerging global regulatory standards of due diligence, due regard, and regulatory coherence.

These standards sit at the interface between national and international law to help functionally align the two in ways that will protect and advance shared and competing interests in an interdependent world.

The standards require nations to exercise their regulatory power in certain ways, including demonstrating (i) due regard for the international legal rights and interests of others, (ii) due diligence in the prevention of harm to other States, and (iii) regulatory coherence between governmental measures and their objectives. These international law standards are already implicit in and given effect by the operation of WHO’s current International Health Regulations (IHR) of 2005.

As we develop new pandemic instruments, their presence should be made increasingly explicit. Giving a stronger profile to the standards will help generate new political impetus and new legal bases for implementation of world health law, and fit it to 21st century application.

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Gloved hands hold medical face mask with WHO (World Health Organization) flag.

Strengthening International Legal Authorities to Advance Global Health Security

By Lawrence O. Gostin

The COVID-19 pandemic has exposed marked limitations in the International Health Regulations (IHR) and constrained authorities of the World Health Organization (WHO). With a rising imperative to advance pandemic preparedness and response, more than twenty heads of government proposed a new pandemic treaty. This prospective pandemic treaty offers a pathway to develop innovative international legal obligations, strengthening core capacities, good governance, and compliance mechanisms to prepare for novel outbreaks with pandemic potential.

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international connections concept art.

Moving Beyond a State-Centric Pandemic Preparedness Paradigm: A Call for Action

By Tsung-Ling Lee

Despite the World Health Organization’s (WHO) recent efforts to broaden participation, the international infectious disease control regime remains state-centric.

As such, the state-centric infectious disease regime violates the fundamental principle of how contagious diseases spread within and across countries — the virus recognizes no national borders, nor does the virus discriminate. The longstanding global health mantra — no country is safe until all countries are safe; no one is safe until everyone is safe — should guide global pandemic preparedness.

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globe.

Whose Global Health Security?

By Aeyal Gross

The current discussion within the World Health Organization (WHO) of a “pandemic treaty” aims at better solutions to “health emergencies.”

But, if this focus on “emergencies” comes at the expense of chronic and underlying issues, including the overall status of health systems, we risk replicating, with this legal instrument, the colonial legacy of international health supposedly left behind with the shift to “global health.” This points to the urgent need to rethink what is considered a “crisis” or an “emergency,” as part of the effort to “decolonize global health,” including global health law (GHL).

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Geneva, Switzerland - December 03, 2019: World Health Organization (WHO / OMS).

International Pandemic Lawmaking: Conceptual and Practical Issues — Launch Editorial

By Joelle Grogan, on behalf of the editors*

Leer en español.

Lire en français.

This symposium, “International Pandemic Lawmaking: Conceptual and Practical Issues,” was convened with two primary aims: to shed light on the inequities and imbalances exposed by global pandemic response, and to advocate recommendations on which principles should guide the framing and drafting of a potential international instrument on pandemic preparedness and response.

However, while good principle can guide good action, to be effective it must be more than good principle; and more substance is needed than good design. Thus, these symposium posts published on Monday through Thursday on Bill of Health and the Verfassungsblog, along with our accompanying editorials, look not only to the design of such an instrument, but also its implementation and enforcement.

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Globe and vaccine.

Access-to-Medicines Activists Demand Health Justice During COVID-19 Pandemic

By Brook K. Baker 

It was apparent from the outset of the COVID-19 pandemic that a business-as-usual approach — perpetuating the biopharmaceutical industry’s intellectual property-based monopolies and allowing artificial supply scarcity and nationalistic hoarding by rich countries — would result in systemic failure and gross inequity.

The world had seen it all before, from the Big Pharma blockade of affordable antiretrovirals to treat HIV/AIDS, to the hoarding of vaccines by the global north during the H1N1 bird flu outbreak in 2009 and its stockpiling of Tamiflu.

Activists in the access-to-medicines movement quickly mobilized to combat the threat of vaccine/therapeutic apartheid.

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Medical staff work in the Intensive Care Unit (ICU) for COVID-19 patients in University Hospital of Liege in Belgium on May 5th, 2020.

The Legality of Pandemic Detection and Prevention Technology

*This article is adapted from a longer paper published in the University of Michigan Journal of Law Reform. To access the original paper, please click here.

By April Xiaoyi Xu  

A test-and-isolate system for detecting and monitoring new pathogens could avert future pandemics, but may face legal challenges in implementation.

The test-and-isolate model is described in a 2020 Scientific American article by biochemist David Ecker. Ecker recommends strategically placing modern, high-speed metagenomic sequencing technology in urban hospitals across the United States to flag previously-unknown pathogens before the infectious agents have the opportunity to spread widely and potentially start a new pandemic.

Under this model, during a time period without any apparent pandemics, the 200 biggest metropolitan hospitals in the U.S. would automatically run diagnostic tests up-front for novel causative agents among patients who visit the emergency room with severe respiratory symptoms that are possibly infectious. If such a system detects a sufficiently serious pathogen, public health agencies will send out diagnostic tests to all residents in the affected geographical area(s) within weeks and isolate those who test positive. This system also will be integrated with contact tracing and more standard outbreak response.

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international connections concept art.

The Prospects for an IP Waiver Under the TRIPS Agreement

By Duncan Matthews and Timo Minssen

The informal meeting of the World Trade Organization (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council today, July 6, 2021, focuses international attention once more on prospects for a waiver of the TRIPS Agreement in response to the COVID-19 pandemic.

Regardless of whether an actual TRIPS waiver ultimately comes to pass, the real significance of these efforts lies in the increased focus they have placed on the role of IP and trade secrets in improving access and affordability, and scaling-up of manufacturing and supply of vaccines and other health-related technologies. These conversations have introduced the possibility of a rethinking of the relationship between IP, innovation, conservation, and access.

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