8/28/2020 Understanding the Adverse Effects of Stereotypes on Sexual Minorities in International Refugee Law FrameworkRead NowThis article has been authored by Shubham Tiwary, a fourth-year student at Gujarat National Law University, pursuing B.B.A., LL.B. (Hons.) course. This article was originally published in Engenderings by London School of Economics. Despite the gradual acceptance and recognition of rights of sexual minorities, more than 68 countries still criminalize consensual same-sex sexual acts, with severity of punishment in these countries going as extreme as the death penalty. However, state-sanctioned homophobia is not the only form of hostility. It can also be observed in the form of a state's tolerance and/or failure in curbing aggression aimed at sexual minorities. An example of such behaviour is prevalence of inhumane acts such as conversion therapies and corrective rape therapies, in African and Asian Countries, such as India where conversion therapy receives societal patronage despite the decriminalization of homosexual activities.
Many sexual minorities, due to such hostilities seek asylum or refuge in other countries. However, grant of refugee status is based upon the existence of a well-founded fear of persecution in their home states. Thus, granting asylum in context of sexual minorities rests on the credibility of their Sexual Orientation and Gender Identity ("SOGI") claims, for it is their association to the sexual minorities as a social group, which results in them being subjected to such hostilities. Historically, the countries have been provided with the discretion in adjudicating the veracity of SOGI claims made to them. The different tests being implemented under such discretion has allowed infestation of stereotypical norms stemming from heteronormative perception of sexual minorities or from that of dominant western narratives. Through this post, it is put forth that these stereotypes pose a huge obstacle for a fair adjudication of SOGI claims evincing the need for change, in the asylum adjudication framework. The hegemony of heteronormative stereotypes in asylum adjudication Unlike heterosexual refugees, asylum claimants recognizing themselves as sexual minorities are frequently expected to conform to neoliberal narratives of sexual citizenship grounded in visibility politics. Such politics can clearly be observed in asylum adjudication of sexual minorities, in instances where physical traits in consonance with the stereotypes are used for validating SOGI claims, like associating effeminacy with homosexuality. Furthermore, sometimes grant of asylum is on the basis of how well an applicant can discuss their sexual experiences. The presence of this heteronormativity in asylum framework results in a 'double marginality', as SOGI claimants come under the fringes of both 'sexual minorities' and 'refugee claimants'. Due to this, the marginality of sexual minorities in asylum claimants gets compounded, yielding profound distancing from traditional support systems and resources. For instance the policy of the UK Home Office differentiates between heterosexuals and sexual minorities. Since in the U.K, an asylum claimant does not to have to bear the burden of proof, yet for sexual minorities the ultimate burden falls on them to prove the credibility of their SOGI claims. The prominence of heteronormative stereotypes in adjudication of SOGI claims first came to limelight, through a case adjudicated by the Court of Justice of the European Union (“CJEU”) called the ABC case. Here, individuals- 'A', 'B', and 'C' were claiming asylum on the basis of their homosexuality, in the Netherlands for which they were either subjected to tests, where only stereotyped notions were being deemed credible or had to undergo a detailed questionary of their sexual practices. Furthermore, one of them had to submit films exhibiting private intimate acts as proof for grant of asylum. The creation of a framework allowing detailed questioning of sexual practices or soliciting sextapes shows that the quantum of privacy given to asylum claimants of sexual minorities was far lower than their heterosexual counterpart. Such adjudicatory processes tantamount to a heteronormative paradigm for sexual minorities. The CJEU, prohibited such a framework of adjudication that used stereotypes as a test. It was further observed that questions about claimants' sexual practices and sexual orientation are different and that questions relating to the former invades privacy rights. CJEU also prohibited the administration of any tests which require evidence in forms of videotapes, photos of private sexual activities, infringing the dignity of individuals. The ABC case is a paragon of how hegemony of heteronormative stereotypes adversely affects the asylum claims of sexual minorities. The discretion, provided to the countries for adjudication of SOGI claims combined with a lack of guidance, has led to usage of stereotypes as litmus indicators. These stereotypes ever so often, result in rejection of many authentic narratives of sexual minorities solely based on dissonance with heteronormative perceptions. The Hegemony of Western Narratives In addition to heteronormative norms, prominence of Western academic literature of the colonial era relating to psyche of sexual minorities plays a huge contributing factor to such stereotypes. From the beginning of research on sexual minorities in the West, these minorities have been labelled as deviancies stemming from a mental illness, despite these notions being proved as false and ill-conceived with empirical proofs. The prevalence of such literature in the West, since time immemorial has led to the inception of certain stereotypes, which infest the belief system of many individuals in the wrong sense on how the psyche of sexual minorities is different than the psyche of a heterosexual. These misbeliefs sometimes culminate in the form of broad strokes of generalizations about the psyches of sexual minorities and can adversely affect their SOGI claims. This concern was also highlighted by CJEU in F. v Bevándorlási és Állampolgársági Hivatal (the F case), where Hungary solely relied on projective personality tests such as the Draw-A-Person-In-The-Rain, Rorschach and Szondi tests for determination of SOGI claims. CJEU observed that usage of expert reports was not invalid, however, they should not be the sole criterion for adjudication, due to the inherent inaccuracies of these tests. Furthermore, lack of any alternatives and Hungary’s sole reliance on personality test was found to be coercive in nature. Hence the adjudication process was held to be violative of Principle 18 of Yogyakarta principle, which disallows the use of force to undergo any form of psychological test on account of asylum claimants sexual orientation or gender identity. The facts surrounding the F case highlights that there was an underlying pre-conceived notion that individuals with a particular sexual orientation have certain personality traits, which is patently false. Ascertaining one’s sexual orientation objectively while placing reliance on baseless stereotypes is impossible and fails to consider the complex continuum of SOGI. It also clearly disregards the fact that the psyche of an individual may also differ in accordance with cultural diversity. Furthermore, existing literature on refugee framework primarily focuses on heterosexuals and cis genders. The limited academic literature surrounding asylum framework of sexual-minorities also has a hegemonic western narrative of “migration to a liberation nation” which reinforces the narrative of an intolerant East and a progressive West. This homonationalist discourse acts as an impediment in SOGI asylum claims by reinforcing a single narrative of gay or lesbian identities precluding the non-western sexual subjectivity. Such homonationalist discourse leads to moral, physical, and psychological boundaries, leading to an understanding of SOGI in concrete labels such as that of gays and lesbians. Such labels fuelled by western narratives adversely affects the asylum claimants not recognising themselves in these Western narratives, though coming under the ambit of sexual minority. Revamping the Adjudication Framework Adjudication of SOGI claims have suffered from a lot of flaws mainly stemming from desensitization, towards the needs of sexual minorities. However, this can be mended by educating the adjudication officers and providing them with a rudimentary model which provides flexibility and guidance to responsibly adjudge SOGI claims, while accounting for the differences across cultural and racial backgrounds of asylum seekers. Perhaps, one of the best models for such framework at present is the Difference Stigma Shame and Harm Method ("DSSH Method"). The idea put forth by this model advocates for posing open-ended questions to claimants which leads to a guided discussion rather than an interrogation. The first question guides the discussion to how the claimants knew that they were different than other boys or girls. The course of this dialogue then slowly shifts towards stigmas associated to boys and girls in claimant’s home state. The issue of stigma can lead to a discussion of when and how asylum applicants learned that the majority of their originating society disapproved of their identity and/or conduct, and that society implemented laws and cultural practices to respond to LGBTQIA+ community in an oppressive manner leading to a feeling of shame. This leads to a discussion of harm where the claimant narrates the existence of a fear of harm from state or non-state actors, which leads them to have a well-founded fear of persecution in their home state. Since the asylum claims are made to other countries, due to intolerance of an individual’s Sexual Orientation or Gender Identity is concomitant with persecution in their home state, the usage of claimant’s narrative as a tool for adjudication reduces the claimant’s burden of proof to a great extent. Assimilating the DSSH method will be a progressive step altogether. However, refugee framework needs to be revamped to a greater extent to put sexual minorities’ claims to asylum at par with the heterosexual refugee.
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This article has been authored by Deepanjali Jain and Prateek Khandelwal, a second-year student at Jindal Global University, Sonepat pursuing B.BA.LL.B (Hons.) course and a second-year student at Chanakya National Law University, Patna pursuing B.BA.LL.B (Hons.) course respectively.
INTRODUCTION The famous Israel - Palestine conflict recently reached a new milestone when the United States of America President Donald Trump announced his Peace Plan 2020 known as Peace to Prosperity. While the Israeli authorities and the citizenry embraced the manoeuvring of Trump's Peace Plan, the plan was rejected by the Palestinians. The Palestinian President Mahmoud Abbas immediately denounced the plan as a “conspiracy deal” unworthy of serious consideration, thus making the decades-long pursuit of a so-called two-state solution appear more distant than ever. In the following discussion, the plan will be analysed in the context of the prejudice held by the Trump administration, but before addressing the initiative, it is essential to examine the history behind the issue. It would seem that this issue has its roots in some past conflict, but instead, the impasse has its inception from a promise which led to where we are now, a promise by the former colonizers of Palestine - the British. They promised the land of Palestine to the Jewish residents of Europe as well as Israel. While both European Jewish residents and Israelis were dreaming of conquering this realm, the British also pledged the land of Palestine to the native Palestinians while discharging suzerainty of the colony. This led to a dilemma, whether the land of Palestine is an asset of Israel or home of the natives. War is never a solution to any problem; therefore, many have tried to give a peaceful solution for this issue, including the United Nations and the United States of America. From President George W. Bush’s 'Road Map for Peace' in 2003 to President Donald Trump’s Peace Plan 2020, United States of America has always been keen to resolve this issue to prove its dominance over the world. The Trump Peace Plan is claimed to be a ground-breaking document which will ensure peace for both the nations. This document lays out a draft that claims to handle everything from political infrastructure to economic independence, from deciding capital cities to ensuring border security. The Peace Plan, drawn by the ‘global peacekeeper’ – Trump - claims to set a prosperous way ahead for both the nations. This article shall critically analyse the plan, revealing how it is tilting in favour of Israel and strategically disturbs the peace of Palestine. VISION BOARD OF PEACE PLAN The Peace Plan talks about the territorial distribution between Israel and Palestine. The plan ensures that while the countries will have distinctive borders, the residing citizens in those areas will not be asked to move irrespective of their nationality. Israel will have an undisputed authority over the Jordan valley, which consists of a vast expanse of the West Bank while Palestine will get the Gaza strip. President Trump exclaimed in his speech that with this distribution, Palestine would be receiving more than half the amount of land that it is currently in possession of. While the plan seems to be working in favour of both the countries, this clause tends to tilt towards Israel on so many levels. Reports show that Jordan valley has a lot of economic potentials as Dead Sea and Jordan River are geographically very close to the Jordan valley. They contribute to its fertile soil due to which it has a booming agricultural and tourism sector. While on the other hand, economic conditions in the Gaza strip are constantly collapsing due to terrorist activities which in-turn are resulting in rising unemployment and poverty. Assigning of the Gaza strip to Palestine will adversely affect the overall financial health of Palestine, resulting in a low GDP while at the same time the Jordan valley will continue to prove itself an asset for Israel. Jordan valley, a prominent area of the west bank, has been a conflicted area for a while now as Israel annexed it from Jordan in the six-day war in 1967. Although the majority of people who live there identify themselves as Palestinians, Israel has occupied most of the bank and has prevented the Palestinians from living in those areas or buying land there. The Palestinians who live there are not provided with water or any basic necessities. Moreover, Israelis are now forcing them out of the remaining area. The international authorities, including the United Nations, have repeatedly pointed out that such annexation is illegal and the settlement of Israel’s civilians in such occupied territories is a war crime. Hence, declaring Jordan valley an annexation to the territories of Israel will show the complete disregard of international laws and insensitivity towards human rights on the part of the United States and more specifically, President Trump. The Peace Plan also suggests transportation facilities to be built in order to connect the West Bank and Gaza strip for the Palestinian settlers to move across comfortably without causing security breach for Israel. This clause clearly points towards the utmost importance given to the security of Israel’s borders. Additionally, it neglects the possibility of security issues that Palestine will be facing due to the demarcation provided under the plan which divides Palestine into two parts connected through a passage across the territory of Israel. Therefore, Palestine will never be able to have an untied forefront against Israel in the case of a security breach. The Peace Plan also discusses the capital cities for both nations. They suggest that Jerusalem will remain the undisputed capital for the State of Israel while the eastern Jerusalem, located at the outer edges of Jerusalem, will be acknowledged as Palestine’s capital. It must be noted that Jerusalem has been a contested region as it is considered to be a holy city due to its significant influence on the religion of Judaism, Christianity and Islam. Therefore, the citizens of both the countries aspire Jerusalem to be the capital city of their nation and prove their dominance by citing the religious sentiments imputed to the city of Jerusalem. Hence, the Peace Plan declaring Jerusalem as capital for Israel shows bias on the part of President Trump in favour of Israel. Moreover, his lack of sincerity as a neutral party for negotiations can be seen in the inconsiderateness towards religious emotions of Palestinian citizens. CONCLUSION Therefore, it can be concluded that the Trump’s Peace Plan 2020 is highly biased. Declaring the annexed Jordan valley as legitimate territory of Israel is a violation of human rights. Further, it is also a more economically beneficial area as compared to the Gaza strip which is assigned to Palestine. Also, announcing Jerusalem as Israel’s capital while it holds such religious values for both the countries is exceptionally wrong towards the sentiments of Palestinian citizens. No measures will ever result in a fruitful truce until both the countries are relieved from the baggage of past atrocities. Even Palestinians at times claimed that there can be no future establishment of an enduring peace or the transformation of the existing hostile relationship between Israel and Palestinians unless Israel admits that its ethnic cleansing of 1948 was a great injustice and wrong. Trump’s 'Peace' Plan is more of a political move as opposed to a plan intended for establishing harmony. It is an attempt to prove world dominance of United States of America by President Trump and advance his political career internationally. Undoubtedly, such political intent behind the Peace Plan justifies the dissent of the Palestinian authority and their citizens. This article has been authored by Mugdha Mohapatra, a fourth-year student at National Law School of India University, Bengaluru, pursuing B.A.LL.B (Hons.) course. In April the Ministry of Commerce and Industry released Press Note 3 to amend the FDI policy in order to “curb opportunistic takeovers of companies”. The measures [1] are: i) all investments from countries sharing a land border with India are now required to go through the government approval route irrespective of the sector and ii) any transfer of ownership of FDI in Indian entities that would result in beneficial ownership for an entity that falls within
the aforementioned restriction also requires government approval. Such screening requirements already existed for investments from Pakistan and Bangladesh. These measures can be best characterized as “screening requirements” to allow foreign investment in India. If such a measure is to be challenged under international law by China, it would have to resort to the dispute settlement mechanism under WTO rules. This is because India has terminated [2] the Bilateral Investment Treaties with China which allows disputes arising from such treaties to be resolved through arbitration. Dispute settlement by WTO panels focus upon textualist legal interpretations of multilateral trade agreements and by design exclude any other considerations. Furthermore, even though reports by WTO panels and appellate bodies are not treated as precedents, these decisions lay down accepted tests and principles of interpretations for WTO legal texts. In this article, the impugned measures have been analysed in light of relevant WTO disciplines having a bearing upon investment. I have argued that the measures introduced do not constitute a violation of India’s commitments under the General Agreement on Tariffs and Trade (hereinafter GATT), Trade-Related Investment Measures (hereinafter TRIMs), and General Agreement on Trade in Services (hereinafter GATS). The General Agreement on Tariffs and Trade challenge GATT is one of the multilateral trading agreements that governs members of the WTO. This agreement governs the elimination of tariff barriers that govern the free trade and movement of goods based on the principles of ‘most favoured nation’ (hereinafter “MFN”) and ‘national treatment’ (hereinafter “NT”). These are the principles of non-discrimination that member states are expected to comply with. The GATT however does not attempt to regulate foreign investment. The only investment related issue adjudicated upon under GATT is the case of Canada-FIRA. [3] In this case, the Canadian government introduced measures to screen investments in Canadian corporations. The panel report in this case identified that the GATT agreement does not have the power to regulate investments and only focused upon the export and local content requirements which impacted goods. The panel conceded that it was the sovereign right of a nation to regulate investments. The measure introduced through Press Note 3 is a screening requirement and does not affect the supply of goods per se, thus a challenge under the GATT protocol will not be successful. A Panel may take into account the fact that the measure at issue disproportionately affects only those nations sharing a land border with India unlike the FIRA which applied to all foreign entities seeking to invest. However, such an analysis is not a ‘test’ required by the text of the GATT to be ‘fulfilled’ and will not affect the outcome. The Trade-Related Investment Measures challenge The TRIMs agreement [4] is a limited multilateral instrument that restates and clarifies the scope of the applicability of the GATT to investment regulations related to goods (Art.1). This prohibits member states from derogating from their NT obligations and imposing quantitative restrictions (Art.2). An illustrative list of such violative measures refer to quantitative restrictions, export related requirements, performance requirements etc. Although the illustrative list is not exhaustive, previous panels, such as the one in the case of India-Autos, [5] have always focused upon direct negative impacts upon trade in goods as opposed to measures that merely have an impact upon trade while analysing TRIMs. Measures such as screening foreign investment are routinely utilised as ‘welfare enhancing measures’. These may be categorised as wasteful and as imposing ‘frictional costs’ upon foreign investors, but the TRIMs agreement simply does not apply to such measures. The General Agreement on Trade in Services challenge Of all the relevant WTO rules, the GATS [6] provides the most targeted reference to foreign direct investment. The GATS governs Mode 3 of supply of services, i.e. ‘through commercial presence’. A common way in which commercial presence is established is by FDI in entities supplying services in the member states. Under the GATS framework, member countries are required to specify their NT obligations to liberalise specified sectors in a schedule of commitments. However, countries are required to apply the principle of MFN in all sectors. This means that there is an obligation to accord ‘no less favourable treatment’ to every member state as per Article 2 of the GATS. Less favourable treatment, as held in the panel report of US–Section 337 of the Tariff Act of 1930, does not mean identical treatment must be ensured. This requirement is only fulfilled when conditions of competition [7] are modified due to the impugned measure. The current FDI policy does not prohibit foreign investments from the affected countries or impose additional costs upon such investments, and the ‘fundamental thrust’ [8] of the policy is not to disadvantage foreign investments but only to screen such investments. Therefore, it is unlikely that this policy would be treated as a violation of India’s MFN or NT obligations. If the impugned measure is challenged it would be under the market access commitments undertaken under Article XVI (2)(f) of the GATS which prevents members from adopting ‘limitations on the participation of foreign capital in terms of maximum percentage limit on foreign share-holding or the total value of individual or aggregate foreign investment’. A screening requirement does not constitute a violation under this definition. The panel in China-Publication and Audio Visual Products [9] found that in order to constitute a violation under Article XVI 2(f) the measure must either specify a maximum percentage of capital that can be held by foreign investors; or stipulate a total permissible value of foreign investment, either by an individual investor or foreign investors as a whole. Even though India’s new FDI policy makes the process of investing in India more cumbersome, it in no way place a ceiling on the maximum percentage of holdings or specify a total value of investments in any way. Therefore, a challenge to the impugned measures is not sustainable under the GATS framework. It should also be noted that the manner in which a dispute is referred to WTO dispute settlement is not divorced from the political context within which it operates. UNCTAD reported [10] that FDI screening norms now exist in over 28 jurisdictions including the European Union, China, Russia, USA and UK. Such regulations are predominantly justified on the basis of national interest and national security concerns. Furthermore, due to the COVID-19 situation, in line with United States CFIUS regime, Australia, Germany, Spain, and Italy have regulated investments from China through similar measures. [11] In this specific political context, a challenge to such measures may not even be introduced by China. Conclusion The notification suffers from several defects that should be remedied. [12] India’s legislative change is extensive as it applies to all sectors and not just those considered “sensitive” sectors. There is no distinction between majority or control investments and minority or passive investments from China. The term ‘beneficial ownership’ is also not defined in Indian law. It would also help the Indian government’s position to clarify whether this is a temporary or a permanent change in policy to ensure predictability for investors. However, if the measure of imposing a screening requirement is challenged before the WTO, it is unlikely that such a challenge would survive. This is so, especially in light of the COVID crisis and the imposition of such requirements all over the world. However, there is a need to bring clarity on the applicability of the notification to preserve a sense of certainty for global investments. Endnotes: [1] https://dipp.gov.in/sites/default/files/pn3_2020.pdf [2]https://investmentpolicy.unctad.org/international-investment-agreements/treaties/bilateral-investment-treaties/912/china---india-bit-2006- [3] https://www.wto.org/english/tratop_e/dispu_e/gatt_e/82fira.pdf [4] https://www.wto.org/english/docs_e/legal_e/18-trims_e.htm [5]http://www.worldtradelaw.net/reports/wtopanels/india-autos(panel).pdf.download [6] https://www.wto.org/english/docs_e/legal_e/26-gats.pdf [7] https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds401_e.htm [8] https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds108_e.htm [9]https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=Q:/WT/DS/363ABR.pdf&Open=True [10] https://unctad.org/en/pages/PublicationWebflyer.aspx?publicationid=2582 [11]https://ccgnludelhi.wordpress.com/2020/04/29/press-note-3-fdi-policy-and-national-security/ [12]https://www.bloombergquint.com/coronavirus-outbreak/coronavirus-response-handling-chinese-investments-with-a-deft-touch 8/17/2020 COVID-19, Global South and International Law- How Will Law Treat Medicine Once the Pandemic Subsides?Read NowThis post has been authored by Poorva Bhatia, a third year student at the O.P Jindal Global University pursuing B.A., LL.B. (Hons.) course.
1. Adopting a Third World Approach to International Law (TWAIL): Past lessons, Patents and Access to Medicines Internationally, the developments in the field of intellectual property rights and human rights have been largely independent. However, in recent times, the interplay between them, specifically between medical patents and right to health, cannot be denied. (1) This became the issue of much discussion internationally, especially during the HIV/AIDS crisis where the issue of lack of access to affordable medicines in developing countries came to the spotlight. (2) Today, the world faces another pandemic by the name of Covid-19. While the rationale behind granting monopolizing patent rights to pharmaceutical companies in order to encourage and boost the technological and biomedical research cannot be denied, the current post aims to view the same through the eyes of a TWAIL academic. A TWAILian lens has been adopted for this paper in order to emphasize upon the equality of third-world people and to insist that all thoughts and actions concerning international patents law should proceed on the assumption that third-world people deserve no less dignity, no less security, and no less rights or benefits from international action than do citizens of the Global North. (3) As is evident from the magnitude of the HIV/AIDS crisis in Sub-Saharan Africa in the past, it can be said that international law plays a crucial role in helping to legitimize and sustain the unequal structures and processes which often result in a growing global North-South Divide. (4) Often, under the garb of ‘neo- liberalization’, private property rights of the Global North are prioritized and policies with grave socio-economic implications for the poor in the third world countries are promoted without any accountability or much human rights discourse. (5) 2. People’s Vaccine and Global Access: Historic Resolution or Utopian Dream? Under some special circumstances such as the ongoing pandemic, World Trade Organization’s TRIPS agreement (Trade-Related Intellectual Property Rights) allows countries to grant compulsory licenses to companies to produce a patented product under an emergency situation.(6) Moreover, companies also have the option of using the voluntary Medicines Patent Pool to license medicines for Covid-19 and pool intellectual property to ensure affordable access in low and middle-income countries. (7) Barring these limited exceptions, it is interesting to note that UNAIDS has called for a “People’s Vaccine” via an open letter which is signed by over 150 global leaders, advocating for “mandatory worldwide sharing of all Covid-19 related knowledge, data and technologies with a pool of Covid-19 licenses freely available to all countries”. (8) It uses very evocative language and calls for global solidarity in use of the resources for fighting the current pandemic. This is an unprecedented move as for the first time in history, such sentiments have been advocated unanimously. It is also unprecedented because it does not shy away from addressing the history of unequal access in dealing with diseases and condemns ‘monopolies, crude competition and near-sighted nationalism’ in dealing with the current pandemic. (9) Additionally, it also advocates for the empowerment of countries and to utilize the flexibilities in the WTO Doha Declaration on the TRIPS Agreement and Public Health to give access to medicines for all. This letter is an extension of the sentiments shared by countries roughly a month ago which were brought about through a UN General Assembly resolution (hereinafter “UNGA”) in which the Member States called for “equitable, efficient and timely” access for all countries to any future vaccines developed to fight COVID-19. (10) Interestingly, both the UNAIDS Open letter and UNGA resolution have resulted in the adoption of a World Health Assembly resolution titled Covid-19 Response, which was passed recently without any objections. (11) This resolution is a significant step as it mirrors the sentiments shared in the open letter. Furthermore, it emphasizes “the role of extensive immunization against COVID-19 as a global public good for health in preventing, containing and stopping transmission in order to bring the pandemic to an end, once safe, effective, accessible and affordable vaccines are available”. (12) However, I wish to argue that these ‘calls for solidarity’ present an overly simplistic narrative. The reality is, in fact, much more complex and nuanced, given the authoritarian interests of the global north. In fact, US has already expressed its reservations on the resolution and has dissociated from certain sections of the resolution. (13) US believes that the resolution sends “the wrong message to innovators who are essential to the solutions which the whole world needs” as resolutions such as this one are “misinterpretations of international trade obligations which may negatively affect countries’ abilities to incentivize new drug development and expand access to medicines”. (14) Additionally, it must be kept in mind that while this resolution is diplomatically historic, it is still legally non-binding on the sponsoring nation states. 3. Need for Global Access Agreements before vaccine is developed: A disturbing, me-first bilateral approach of the nations can already be seen wherein governments in a hurry to gain access to a working vaccine by the end of this year, have started setting up incentive structures that would entice manufacturers to enter into agreements which would secure early national access to the vaccine. This is being made possible by advance purchase agreements i.e. in return for the right to buy a specified number of vaccine doses in a given time-frame, governments would finance part of the upfront cost faced by vaccine producers. For example, recently, the United States government signed a $1.95 billion agreement with Pfizer Inc. and BioNTech securing 100 million doses of their coronavirus vaccine for its citizens. (15) Similarly, U.K has signed a deal with Sanofi, GlaxoSmithKline for 60 Million Doses which would enable the British Government to secure early access to four different potential COVID-19 vaccines. (16) As seen from above, it cannot be denied that at present all the countries are in the vaccine race (17) with noble goals to overcome the pandemic. However, the reality of biotechnology being the key player in global power relations cannot be denied. While as elaborated in the previous section, all the key players in the vaccine race have pledged to provide the vaccine at no profit/low cost during the pandemic, the real test would come post the immediate containment of the pandemic. As expressed by many experts, vaccines against virus are notoriously difficult to develop and in addition to that, Covid-19 has a very real potential to become yet another endemic virus in our communities and never go away. (18) Yet, given the unprecedented levels of global collaboration and funding across governments, international organizations, universities and pharmaceutical companies, it is possible that we might have a workable vaccine in a few months. (19) The next question which the larger international community would be faced with is whether the fight against COVID -19 stops with the successful development of the vaccine. At present, there is no unified global system to oversee the allocation of vaccine manufacture and supply. (20) Given not just the obvious health perils but also the economic and social costs of this virus, it is not unreasonable to presume that the countries who have the technology and resources to manufacture the vaccine would face the pressure to make the vaccine available to their own population first. The history of the international community in dealing with the breakout of diseases is a testament to this inequality. For example, the life-saving drugs for HIV/AIDS and Swine flu were made available at affordable rates to the African populations much later than their European or North-American counterparts. At present, many third world countries are left in a very delicate situation wherein they just have to rely on assurances of the industrialized countries which may not be strictly binding in nature. Thus, we need global access agreements which are binding before a vaccine is developed to ensure that the distribution of such vaccines is done in an equitable manner with such life-saving drugs being legally treated as ‘global public goods’. (21) Another major reason for advocating for such global access agreements is to ensure its binding in international law as a legitimate rule of international law. WHA Resolution merely includes norms that have not yet been internalized and is not backed by process value. It can be said to be a form of aspirational international law which is a mere moral obligation, which may or may not be observed by States. (22) 4. Conclusion This pandemic post the vaccine development stage has the very real potential of furthering the interests of the rich countries, primarily global north, which have already suffered huge economic losses and might use COVID-19 as an excuse to re-frame global health policies for their limited national interests. This might increase the inequities, which already plague global health and further concentrate power among the rich countries. While the current global solidarity for ‘people’s vaccine’ is a welcome step in the right direction, it is definitely not enough as the principles for the same need to be codified in the form of legitimate and binding rules. ENDNOTES: 1. Patents and Medicines: The relationship between TRIPS and the human right to health by Philippe Culet < http://ielrc.org/ content/ a0301.pdf> 2. World Trade Organization 4th Ministerial Conference Doha on TRIPS and Public Health Accessed on 10th June, 2020 < https://www.wto.org/english/thewto_e/minist_e/min01_e/brief_e/doha_presspack_e.pdf > 3. Okafor, Obiora Chinedu. Newness, Imperialism, and International Legal Reform in Our Time: A TWAIL Perspective. Osgoode Hall Law Journal. Vol. 43, No. 1 & 2 (2005) 4. B.S. Chimni. Third World Approaches to International Law: A Manifesto. International Community Law Review 8: 3-27 (2006) 5. Ibid. Also, it is interesting to note that initially, the preamble to TRIPS agreement asserts that “intellectual property rights are private rights”, but doesn’t talk of the “right to health” of individuals which thus is invariably subjected to the rights of the patent holders, thus omitting any discussion of the accountability of pharmaceutical companies 6. Article 31, TRIPS Agreement Accessed on 11 th June, 2020 <https://www.wto.org/english/docs_e/legal_e/31bis_trips_04c_e.htm> 7. The Medicines Patent Pool stands ready to offer support as needed in access to treatment for the coronavirus. Accessed on 10 th June, 2020 < https://medicinespatentpool.org/mpp-media-post/the-medicines-patent-pool-stands-ready-to-offer-support-as-needed-in-access-to-treatment-for-the-coronavirus/> 8. UNAIDS Press Release ‘World leaders unite in call for a people’s vaccine against COVID-19’ Accessed on 10 th June, 2020 <https://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2020/may/20200514_covid19-vaccine> 9. Ibid 10. Resolution adopted by the General Assembly on 20 April 2020 ‘International cooperation to ensure global access to medicines, vaccines and medical equipment to face COVID-19’ Accessed on 10 th June, 2020 <https://undocs.org/en/A/RES/74/274> 11. Seventy-Third World Health Assembly, Agenda Item 3 on 18 May 2020 ‘Covid-19 Response’ Accessed on 10 th June, 2020 <https://apps.who.int/gb/ebwha/pdf_files/WHA73/A73_CONF1Rev1-en.pdf> 12. Ibid 13. Written Statement by United States of America, World Health Assembly, World Health Organization Explanation of Position “COVID-19 Response” Resolution Accessed on 10 th June, 2020 <https://apps.who.int/gb/statements/WHA73/PDF/United_States_of_America2.pdf> 14. Id. Taken from the previous source. 15. US agrees to pay Pfizer $2bn for Covid-19 Vaccine doses by end of year- Accessed on 30th July, 2020 <https://www.theguardian.com/us-news/2020/jul/22/pfizer-coronavirus-covid-vaccine-us-deal> 16. Coronavirus vaccine: UK signs deal with GSK and Sanofi- Accessed on 30th July, 2020 <https://www.bbc.com/news/business-53577637> 17. More information regarding vaccine race can be read here- Which are the front-runners in the COVID-19 vaccine race? Accessed on 10 th June, 2020 <https://newseu.cgtn.com/news/2020-06-04/Which-are-the-front-runners-in-the-COVID-19-vaccine-race--R0lGlNSeKA/index.html> 18. This view has been endorsed by WHO’S emergencies director Dr. Michael Ryan and WHO epidemiologist Maria van Kerkhove during a virtual press conference in Geneva. Accessed on 10 th June, 2020 <https://www.bbc.com/news/world-52643682> 19. According to the latest WHO Data, there are over 200 vaccine candidates in development globally. Accessed on 10 th June, 2020 <https://www.who.int/publications/m/item/draft-landscape-of-Covid-19-candidate-vaccines> 20. This view has also been endorsed by Dr Seth Berkley, CEO of Gavi — The Vaccine Alliance, a partner of the Bill & Melinda Gates Foundation, which works for better and more equitable access to vaccines. Accessed on 10 th June, 2020 <https://m.economictimes.com/news/international/world-news/coronavirus-exit-strategy-depends-on-getting-vaccine-to-whole-world/articleshow/75501680.cms> 21. An expert explains: ‘We need global access agreements before a vaccine is developed’ Dr. Seth Berkley. Accessed on 30 July, 2020 < https://indianexpress.com/article/explained/an-expert-explains-we-need-global-access- agreements-before-a-coronavirus-vaccine-is-developed-6387936/> 22. Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of Sources, 93 Iowa L. Rev. 65 (1997). |
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