02 Aug COVID-19 and Courts Symposium: Maximum Disclosure — Colombian Tribunal Leads Way in Ensuring Transparency over COVID-19 Vaccine Contracts
Rocío Quintero, Timothy Fish Hodgson and Young Park work at the International Commission of Jurists.
This symposium consists of a series of posts authored by the different panelists of a webinar hosted by the International Commission of Jurists titled “COVID-19 and Courts: A Global Trend of Judicial Deference?“
On 11 May 2021, the Administrative Tribunal of Cundinamarca in Colombia ordered the Colombian Government to disclose to the general public its COVID-19 vaccine procurement contracts with pharmaceutical companies. In addition, the Tribunal ordered the Government to hand over information on working meetings or other communications with pharmaceutical companies pertaining to its procurement of COVID-19 vaccines.
This decision arises from a request made in January 2021 by the International Institute of Anticorruption Studies (IIAS), a Colombian non-profit organization to the Colombian Government for information related to its COVID-19 vaccine procurement. While the Colombian Government had originally provided some of this information, it had refused to share details on the contracts it had signed with pharmaceautical companies, as well as other critical pieces of information, such as the price it had payed per dose.
The Government maintained that the contracts’ confidentiality clauses prevented disclosure of any such details, and argued that their public disclosure would actually harm the general public’s prospects of obtaining vaccines by limiting the Government’s ability to negotiate effectively with pharmaceutical companies.
The Tribunal rejected these arguments, relying predominantly on the following rationales: first, COVID-19 vaccines are a global public health good; and second, the principle of “maximum disclosure” (Principio de máxima divulgación) of public information, a principle applicable to the right to information, should apply to contracts pertaining to COVID-19 vaccines.
In this blog, we first summarize the ruling and then explain its broader importance. First, it emphasizes the crucial connection between access to justice and access to COVID-19 vaccines. Second, the decision draws attention to the indisputable importance of acknowledging and taking into account COVID-19 vaccines as a global public health good. Third, the ruling underlines the interconnectedness of so-called economic, social and cultural rights (ESCR) and civil and political rights (CPR). Finally, the decision appropriately refers to both the duties of the State and the responsibilities of corporations to respect human rights in the context of COVID-19 vaccine access.
What did the Tribunal decide and why?
In its decision, the Tribunal concluded that COVID-19 vaccines are a global public health good, relying on statements of various international organizations and entities, including a May 2020 resolution of the World Health Assembly. With respect to this, it is worth noting that Colombia’s own legislation, namely, Law 2064 of 2020, explicitly defines COVID-19 vaccines access as a public interest issue.
The Tribunal also concluded that, contrary to what the Government maintained, the publication of COVID-19 vaccine contracts would not prejudice its ability to procure vaccines nor would it harm public health and safety. Moreover, pharmaceutical companies and their interests would not be harmed either, as transparency over certain contract details would not expose any trade or intellectual property secrets. Indeed, as the Tribunal acknowledged, in various other countries, these contracts have been disclosed without impairing the relevant authorities’ ability to negotiate with pharmaceutical companies.
Relying primarily on international human rights standards – and particularly those developed by the Inter-American human rights systems – the Tribunal stressed that the rights to freedom of expression and information are crucial for a healthy democracy, and in the context of a “global public good”, such as COVID-19 vaccines, they take on an even greater importance. The Tribunal warned that keeping COVID-19 vaccine acquisition contracts confidential would violate these rights. For instance, maintaining contract confidentiality would prevent civil society and the general public from ensuring the oversight necessary to keep the government accountable.
Overall, the Tribunal’s decision amounted to an application of the “maximum disclosure” principle. As the Tribunal highlighted, this principle has been developed mainly by the Inter-American Human Rights system based on Article 13 of the American Convention of Human Rights (Freedom of Thought and Expression). Regarding this principle, the Inter-American Court on Human Rights has set out that, in a democratic society, it is essential that State authorities be governed by the principle of maximum disclosure, which establishes the presumption that all information is accessible, subject to a limited system of exceptions.
The Tribunal also warned against excessive private control over the vaccine acquisition process, including by referring to examples of possible risks that could occur, such as overcharging by pharmaceutical companies.
What are the broader implications of the Tribunal’s decision?
The Tribunal’s decision upholds the importance of publicly disclosing the contracts between pharmaceutical companies and governments relating to COVID-19 vaccines. It highlights the fact that non-disclosure clauses featured in many of these contracts may, prima facie, violate international human rights law, as well as domestic legal standards applicable to procurement contracts.
Across the world, COVID-19 vaccine procurement contracts between pharmaceutical companies and States too often remain heavily guarded secrets, with only heavily redacted versions of such contracts being disclosed publicly and only when their existence is actually revealed. Various governments have maintained that pharmaceutical companies have required them to sign non-disclosure agreements in order to secure COVID-19 vaccines, sometimes even when those agreements violate their own domestic law.
Whether these non-disclosure clauses are at the instance of pharmaceutical companies or governments themselves, problems with them remain the same. The non-disclosure agreements concern crucial contract terms, such as pricing per dose, delivery dates and recourse for delays and other non-liability terms. The lack of transparency they engender gives pharmaceutical companies an unfair advantage in price negotiations, leading to significant variances in vaccine prices, according to what little information has transpired through leaks. As a result, pharmaceutical companies have largely avoided liability despite significant delays in vaccine delivery.
Furthermore, the ruling shows the crucial connection between access to justice and access to COVID-19 vaccines, which the International Commission of Jurists (ICJ) has emphasized since the onset of the pandemic, because “retaining scope for judicial review by independent courts is essential to upholding human rights and the rule of law during states of emergency”. The ICJ has also stressed this crucial aspect in the context of the specific issue of equitable vaccine access. The Tribunal’s decision, adding to decisions of courts in Zimbabwe, Nepal and India, shows the kind of role courts can and should play in ensuring equitable COVID-19 vaccine access.
Moreover, the ruling underscores the importance of recognizing COVID-19 vaccines as a global public health good. The International Covenant on Economic, Social and Cultural Rights places obligations on States to provide access to healthcare services, goods and facilities, including to ensure the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”. The UN Committee on Economic, Social and Cultural Rights, a range of UN Special Procedures and the World Health Organization are among the UN entities that have acknowledged that COVID-19 vaccines are a global public health good. As the ICJ has argued, the implication of this is an immediate obligation for States to ensure the equitable provision of COVID-19 vaccines.
Finally, the ruling also illustrates the interconnectedness of economic, social and cultural rights and civil and political rights. While the Tribunal came to its conclusion on the basis of freedom of expression and information, it could just have easily come to the same conclusion basing its analysis on the right to access health-related information, which, in turn, entitles all people to seek, receive and share information and ideas concerning health issues, a component of everyone’s right to health.
Conclusion: Access to Vaccines and Access to Effective Remedies
The deep inequities in access to COVID-19 vaccines are well-documented and have deservedly been criticized as a failure of States around the world to ensure the realization of a wide range of human rights, including the rights to health, life and equal benefit of scientific progress.
The problem, however, is even bigger than this. As Sekalala et al have argued in a recent article published in the British Medical Journal, these inequalities give rise to concern that global health systems and discourses have all too often veered towards charity-based models that perpetuate colonial power structures and power relations. As the ultimate human rights arbiters, Courts have a key role to play in the interpretation of and ultimately in upholding everyone’s human rights. They must do so in a manner that does not perpetuate injustices, such as those caused by global vaccine inequality. This requires, according to the authors, that States must “pay greater attention to the human rights responsibilities of corporations”.
By understanding COVID-19 vaccines as a global public health good, and directly acknowledging and referring to the corporate responsibilities of pharmaceutical companies, the Colombian Tribunal shows that corporate interests may have to defer to human rights, particularly in the context of public health emergencies, such as the COVID-19 pandemic.
The Tribunal is not alone in having used its judicial authority to vindicate rights relating to access to COVID-19 vaccines, and it is likely that the number of judgments relating to COVID-19 vaccine access will continue to rise. At this point, however, what sets the Tribunal’s decision apart is that it makes clear that without making information about the contracts between governments and pharmaceutical companies available to the general public, there is no possibility of accountability – whether legal, moral or political – for the terms and implementation of vaccine procurement contracts.
For more information on this case, read ICJ’s latest briefing paper entitled, “Maximum Disclosure: Secrecy in COVID-19 Vaccine Contracts and Other Shortcomings of Colombia’s Vaccine Rollout“.