International Trade Law Norms and the Ethics of Covid-19 Vaccine Distribution
Steve Charnovitz
21 September 2020
One of the enduring contributions of international trade law is the idea that developing countries, especially the least developed countries, should receive affirmative action from the trading system. According to the WTO Secretariat, “The WTO Agreements contain special provisions which give developing countries special rights ….” In addition, these “special and differential” (S&D) provisions require “all WTO members to safeguard the trade interests of developing countries” and to “increase trading opportunity for developing countries.” Unfortunately, the WTO has not been highly effective in implementing such affirmative action. Still, this S&D norm retains a central role in WTO ideology.
Although affirmative action in support of developing countries is not a basic principle of international law, one does see it modestly reflected in international health law and international labor law. For example, the 1946 Constitution of the World Health Organization (WHO) notes in its Preamble that “Unequal development in different countries in the promotion of health and control of disease, especially communicable disease, is a common danger.” The revised 1946 Constitution of the International Labour Organization (ILO) calls for “effective international and national action … to promote the economic and social advancement of the less developed regions of the world….”
In my 10 May 2020 paper “The Field of International Pandemic Law” (https://ielp.worldtradelaw.net/2020/05/the-field-of-international-pandemic-law.html), I did not address the ethics of how governments should distribute Covid-19 vaccines. Now that vaccines are being produced and tested, there should be a robust discussion of the appropriate international principles to guide distribution of vaccines and enabling of global health opportunities. Given that a viral pandemic is a quintessential global problem, there is a need for international legal norms, rather than merely national policies in each country, to solve that problem.
Drawing from the S&D principles of world trade law, one could postulate that there should be global affirmative action in the distribution of effective Covid-19 vaccines. This might mean that, in allocating vaccines, countries should be prioritized starting with the countries at the bottom end of the income-per-capita scale. In other words, the benefits of the vaccine arguably should be given first to societies that are most impoverished and distributed last to societies enjoying the highest incomes. Such an imperative would seem especially apt now in an era of increasing attention to patterns of inequality and to “rights” to health.
In my view, while there is a moral reason to distribute vaccines in a poverty-sensitive way, there is also a pragmatic reason. If the vaccines will only be distributed in the rich countries after being distributed in the poor countries, then the rich countries will have a very strong incentive to carry out worldwide distribution. On the other hand, if the vaccines are distributed first in the high-income countries, those countries might not follow through effectively in delivering vaccines to poor countries. To be sure, rich countries would directly benefit from achieving mass Covid-19 immunity in poor countries. Nevertheless, over the years, I have observed that governmental commitments to help developing countries, even when justified by logic and sound economics, are often neglected in subsequent years.
Global governance requires a mix of the best of nationalism and internationalism. While each problem is different, the more a problem crosses borders, the more that international principles of law are probably needed. Without any shared principles, the leading vaccine-producing nations may pursue a strategy of vaccine nationalism.
Such me-first policies will be supplemented to some extent with national health programs that provide funding to foreign health programs and enhanced funding for the WHO. And governmental programs in public health will be carried out alongside valuable nongovernmental efforts boosted by global foundations and pharmaceutical companies. Taken as a whole, such decentralized efforts to distribute vaccines may be the best that our current world community can achieve in 2021-22.
Still, I would like to see more attention by policymakers to norms for the fairest way to distribute a scarce good such as a Covid-19 vaccine. Effective vaccine distribution to each person provides positive externalities for global communities, including the possible eventual achievement of a “global public good” of Covid-19 immunity.
