To Address Vaccine Hoarding Do Not Look to International Criminal or Human Rights Law

[Dr Ebba Lekvall is a Lecturer at the University of Essex School of Law and Human Rights Centre. Dr Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars. Dr Tara Van Ho is a Senior Lecturer at the University of Essex School of Law and Human Rights Centre and co-Director of the Essex Business and Human Rights Project.]

In a recent Opinion in The Guardian, ‘The richest countries are vaccine hoarders. Try them in international court’, professor and former WHO director Anthony Costello rightly argues against the current unjust distribution of COVID vaccines and that ‘people across the world want justice’ and calls for action to be taken against these states.  

We agree that existing distribution efforts of COVID vaccines are not working and that richer countries need to start prioritizing providing vaccines to poorer states and assisting them in administering vaccines if necessary. We also agree that most states, including the UK, have undertaken human rights obligations to do so. However, as experts of international human rights law and international criminal law, we feel the human rights and international legal demands affecting vaccine distribution are so important, and so complicated, that they demand a more serious and accurate discussion than the grand sweeping statements Costello made that ignore the law as it is in favour of the law as he wishes it to be.

Where Costello makes his biggest error is in his call for international lawyers to consider the option of prosecuting states at the International Criminal Court (ICC) for crimes against humanity. There are several issues with this assertion. First, the ICC only has jurisdiction over individuals. It is therefore not possible to prosecute states before the Court. Additionally, a ‘crime against humanity,’ as the Statute of the International Criminal Court defines it, requires ‘a widespread or systematic attack directed against any civilian population’. The notion of an ‘attack’ is specific and it cannot be the simple byproduct of bad policy unless that policy has, as its purpose, to harm the civilian population. Vaccine hoarding is generally not done with the intention of harming others, but with the purpose of protecting one’s own population without regard for others. It is difficult to imagine how prioritizing one’s own citizens for vaccinations rather than sending vaccines to other countries can constitute such an attack. In practice, the end result may not feel different but from a legal perspective that difference is significant enough that suggesting the ICC has jurisdiction over this crime undermines the very real fight for vaccine equality by redirecting public pressure from those with the power to address the issue to an entity incapable of doing so.

In addition, Costello argues that not sharing vaccines could constitute ‘inhumane acts … intentionally causing great suffering, or serious injury to body or to mental or physical health’, listed as a crime against humanity under Article 7(1)(k) of the ICC Statute. Here, Costello seems to deliberately omit important words in the paragraph, namely that the inhumane acts must be of ‘a similar character’ to the others listed in Article 7(1). The other acts listed in the Statute include crimes such as murder, extermination, imprisonment, enslavement, rape and sexual violence, and torture. The types of crimes that have been prosecuted for being ‘of a similar character’ include beatings, forced nudity, mutilation of corpses, sexual violence, forced marriage and confinement in inhumane conditions. Again, prioritizing vaccinating one’s own citizens over other countries does not come close to being acts of a similar character and cannot compare to the crimes already convicted as ‘inhumane acts’.

Costello’s argument also suffers from a misdirected focus when it comes to human rights bodies. Costello suggests that the policies of countries such as Germany, Canada, the UK, and others breach the UN Convention on the Rights of the Child (CRC) and the UN Guiding Principles on Business and Human Rights. He does, rightly, acknowledge that these instruments do not “have much teeth”, but without explaining why or what changes are needed to advance the fight for vaccine equality. 

There are significant questions about the extraterritorial reach of the CRC that are too complex for a blog post, but it is the lack of a significant enforcement mechanism that is the real problem. Unlike the enforcement potential of the ICC, the Committee on the Rights of the Child is given the power to issue general guidance and review state reports on their compliance with the Convention. The Convention itself does not provide for a communications procedure, meaning an opportunity for people to complaint to the Committee if a state breaches its obligations. 

For individuals to have a right to complain to the Committee on the Rights of the Child about the UK’s conduct—or Germany’s, Japan’s, South Korea’s and Canada’s, all of whom Costello mentioned—the state has to ratify another treaty, the third Optional Protocol to the CRC. Of the states Costello singled out, only Germany has done this. Consequently, holding states accountable for breaches of the CRC is difficult. Costello acknowledges the lack of teeth but without the focus needed to advance vaccine equality.

Costello is also right to point out that businesses, including vaccine makers, have a responsibility to respect human rights, meaning to refrain from interference in the realization of human rights, under the UN Guiding Principles on Business and Human Rights. Unfortunately, he does not adequately reflect on businesses’ responsibilities under these Principles. The UN Working Group on Business and Human Rights, tasked with facilitating the implementation of the UN Guiding Principles, has provided appropriate guidance on this issue. Unfortunately, it has even less enforcement power than the Committee on the Rights of the Child. The Working Group can only make general recommendations, write to governments and businesses to ask questions and make recommendations when they hear of specific instances of problematic conduct, and visit individual states and businesses when invited. The Working Group cannot force a business or state to take measures they do not want to take, and the international community is still working on implementing the Guiding Principles to ensure they are more enforceable in the future. States are in ongoing negotiations over a binding treaty on business and human rights, but that instrument is also unlikely to have the necessary teeth to ensure real accountability.

Lastly, Costello makes the general claim that taking action against the above-mentioned states for breaches of human rights would be ‘a more effective line’ than to pursue negotiations through, e.g., the WTO or appeal to big pharma to waive patents. This is patently untrue. Pursuing justice in international courts is often a very slow process which takes years, even where the case is clearly in the jurisdiction of the courts. Because the system is not currently designed to take the kinds of cases Costello wishes to make, it is not simply a slow process but a doomed one. Moving the vaccine waiver process through the WTO may also take time but it at least has a chance of success. 

No one is served by unrealistic calls for human rights bodies and international courts to do things they are not designed to do. It gives the public false hope that an ‘easy’ solution is coming soon. They then get mad and disillusioned when the system doesn’t deliver those false promises. Those who know how the system works—like those who work for foreign offices in the German, UK, Japanese, South Korean, and Canadian foreign ministries—know that such calls are paper tigers that redirect the population’s anger from those with real responsibility over this crisis to those without any power to address the issues. This is actually helpful for the governments and unhelpful for the victims who are in desperate need of the vaccines. 

States like Germany should be called out publicly, repeatedly, and often until they feel appropriately ashamed of their pursuit of profits over the fight against the Covid pandemic. But rather than suggesting an unrealistic solution to the current crisis, it would have been helpful for Costello to instead promote a more robust international human rights system capable of adequately addressing these kinds of situations, and to call for movement at the WTO. Those are the practical, realistic solutions we need to fight this pandemic and make states more accountable for vaccine hoarding.